SCOTUS Review

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

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

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

2020-2021-2022-2023

September

Sept. 23

 United States Supreme Court Justice Clarence Thomas shown in a file photo speaking at the McConnell Center, named for Republican Minority Leader Mitch McConnell, the longtime U.S. senator from Kentucky.

Washington Post, Justice Clarence Thomas reportedly attended Koch network donor events, Amy B Wang and Ann E. Marimow,  Sept. 22, 2023. New report comes as some justices have suggested the Supreme Court should act on ethics issues.

Supreme Court Justice Clarence Thomas flew on a private jet in 2018 to speak at the annual winter donor summit of the Koch network — a trip that was intended to be a fundraising draw for the influential conservative political organization with interests before the court, according to a report published Friday by ProPublica.

At the summit, held in Palm Springs, Calif., Thomas attended a private dinner for the Koch network’s donors, ProPublica reported. According to the outlet, it was at least the second time Thomas had attended a meeting of the network founded by billionaire industrialist Charles Koch and his brother, David Koch, who died in 2019. Thomas did not disclose the 2018 trip, ProPublica reported.

The revelation adds to the controversies facing Thomas and the court more broadly that have led Democrats and court transparency advocates to call for the nine justices to adopt a binding code of ethics.

In recent weeks, at least two of the justices have publicly suggested the court should act. Justice Elena Kagan on Friday said she and her colleagues could adapt the policy that governs all lower court judges to reflect the unique structure of the Supreme Court.

“I think it would be a good thing for the court to do,” Kagan said during a live-streamed conversation with the dean of Notre Dame’s law school. “It would help in our own compliance with the rules, and it would, I think, go far in persuading other people that we were adhering to highest standards of conduct.”

Kagan noted that Justice Brett M. Kavanaugh had also recently said he hoped the court would soon take steps to address ethics issues.

The latest ProPublica report focused on Thomas’s interactions with the Koch network, which has given millions of dollars to a conservative legal organization behind one of the Supreme Court’s biggest cases of the term that begins in October. The group, Cause of Action Institute, is asking the justices to overturn a decades-old precedent long targeted by conservatives concerned about the power of federal government agencies. The precedent has been used extensively by the government to defend environmental, financial and consumer protection regulations.

In response to the report, Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) called for Thomas to recuse himself from the case, questioning whether the justice could be impartial because of his previously undisclosed involvement with the Koch network.

Sept. 8

New York Times, Justice Alito Rejects Calls for Recusal After Interviews in Wall Street Journal, Abbie VanSickle, Sept. 8, 2023. The justice, shown above in a file photo, dismissed demands from Democratic legislators that he recuse himself from a pending case involving a lawyer who interviewed him.

Justice Samuel A. Alito Jr. on Friday rejected demands from Democratic lawmakers that he recuse himself from a coming tax case after a lawyer involved in the matter interviewed him for The Wall Street Journal.

In an unusual four-page statement attached to an otherwise routine list of orders concerning pending cases, Justice Alito dismissed calls for him to step aside as “unsound.”

“There is no valid reason for my recusal in this case,” Justice Alito wrote. Any notion that his vote might be affected by his connection to the lawyer, he added, “fundamentally misunderstands the circumstances under which Supreme Court justices must work.”

The statement was his first public response to criticism that he had breached an ethical line after sitting down for multiple interviews with a lawyer in the case, David B. Rivkin Jr., who writes for the opinion pages of The Journal. The interviews prompted Democratic lawmakers, including Senator Richard J. Durbin, the chairman of the Senate Judiciary Committee, to urge Justice Alito to step aside when the court hears the case in the coming term, saying that they cast doubt on his ability to be an impartial arbiter.

In recent months, the court has been under increased scrutiny over its practices after news reports detailed lavish gifts, travel and financial dealings involving the justices. Although Justice Clarence Thomas, particularly his relationship with Harlan Crow, a Texas billionaire and conservative donor, has elicited much of the attention, ProPublica revealed that Justice Alito flew on a private jet provided by a hedge fund billionaire who frequently had business before the court.

New York Times, Opinion: Wisconsin Republicans Try to Subvert Democracy, Again, Michelle Goldberg, Sept. 8, 2023. For a little while this year, it looked as though Wisconsin voters had finally broken out of the straitjacket of minority rule in their state. The key to their freedom was an April State Supreme Court election that, turning on the intertwined issues of abortion and gerrymandering, flipped control of the bench from conservatives to liberals.

Since 2011, Wisconsin Republicans have manipulated electoral maps to lock in their legislative dominance, even when a majority of voters chose Democratic candidates. Their grip on the State Legislature has made it impossible to repeal an unpopular 1849 law banning almost all abortions, which went into effect after the U.S. Supreme Court overturned Roe v. Wade. The State Supreme Court election, which turned into the most expensive such race in history, offered voters a singular chance to make their state’s politics more democratic.

Janet Protasiewicz, shown at left, the left-leaning candidate in the nonpartisan contest, was careful not to declare how she would rule in specific cases, but she said that she was personally pro-choice and that she wanted to take a fresh look at the state’s “rigged” electoral maps. She won by 11 points, about as near to a landslide as anyone in closely divided Wisconsin is likely to get. The voters’ message couldn’t have been clearer.

But Wisconsin Republicans may have one move left to thwart their inconvenient citizenry. It looks increasingly likely that they could use their nearly impregnable majority to impeach Protasiewicz before she’s heard a single case.

The pretext for impeaching Protasiewicz is that she won’t agree to recuse herself from redistricting cases, given her campaign comments about the state’s unfair maps, and the $10 million that the Democratic Party put into her race. This is, to put it mildly, a flimsy rationale. Wisconsin’s Judicial Commission has already dismissed a complaint that she violated court strictures by weighing in on contentious issues that might come before her as a judge. And the conservative majority on Wisconsin’s Supreme Court adopted a rule in 2009 that justices did not need to recuse themselves from hearing cases involving their campaign donors.

If Republicans move ahead with this impeachment, it will be for one reason only: because they think they can.

Impeachment, which requires only a simple majority of the Assembly, may be easier for Republicans than removal, which requires a two-thirds vote in the State Senate.  But some observers think that even if Republicans impeach Protasiewicz, they have no intention of actually holding a Senate trial. Once impeached, a justice is suspended from hearing cases while the process plays out. But since the state Constitution is silent on a timeline for that process, Republicans could impeach Protasiewicz and then leave her in legal oblivion indefinitely.

In that case, the Democratic governor, Tony Evers, would never be able to appoint a replacement, and the court would be deadlocked, unable to do anything about either the gerrymandering or the abortion ban.

New York Times, Peter Navarro, an adviser to Donald Trump, was convicted of contempt of Congress over his defiance of a House subpoena, Zach Montague, Sept. 8, 2023 (print ed.). The verdict made Mr. Navarro the second top adviser to former President Donald J. Trump to be found guilty of contempt for defying the House committee’s investigation.

Peter Navarro, a former trade adviser to President Donald J. Trump, was convicted on Thursday of two counts of criminal contempt of Congress for defying a subpoena from the House select committee investigating the Jan. 6, 2021, attack on the Capitol.

The verdict, coming after nearly four hours of deliberation in Federal District Court in Washington, made Mr. Navarro the second top adviser of Mr. Trump’s to be found guilty in connection to the committee’s inquiry. Stephen K. Bannon, a former strategist for Mr. Trump who was convicted of the same offense last summer, faces four months in prison and remains free on appeal.

Mr. Navarro, 74, stood to the side of his lawyers’ table, stroking his chin as the verdict was read aloud. Each count carries a maximum of one year in prison and a fine of up to $100,000. A hearing to determine his sentence was scheduled for January.

Speaking outside the courthouse afterward, Mr. Navarro repeatedly vowed to appeal his conviction.

“I am willing to go to prison to settle this issue, I’m willing to do that,” he said. “But I also know that the likelihood of me going to prison is relatively small because we are right on this issue.”

The jury’s decision handed a victory to the House committee, which had sought to penalize senior members of the Trump administration who refused to cooperate with one of the chief investigations into the Capitol riot.

The trial also amounted to an unusual test of congressional authority. Since the 1970s, referrals for criminal contempt of Congress have rarely resulted in the Justice Department’s bringing charges. Mr. Navarro was indicted last June on two misdemeanor counts of contempt, one for failing to appear for a deposition and another for refusing to provide documents in response to the committee’s subpoena.

The rapid pace of the trial reflected, in part, the fact that the case turned on a straightforward question, whether Mr. Navarro had willfully defied lawmakers in flouting a subpoena. Even before the trial began, Judge Amit P. Mehta, right who presided over the case, dealt a blow to Mr. Navarro by ruling that he could not use in court what he has publicly cast as his principal defense: that Mr. Trump personally directed him not to cooperate and that he was protected by those claims of executive privilege.

Mr. Navarro, a Harvard-trained economist and a strident critic of China, devised some of the Trump administration’s most adversarial trade policies toward the country. Once the pandemic took hold, he helped coordinate the United States’s response by securing equipment like face masks and ventilators. But after the 2020 election, he became more focused on plans to keep Mr. Trump in power.

Mr. Navarro was of particular interest to the committee because of his frequent television appearances in which he cast doubt on the election results and peddled specious claims of voter fraud.

• Politico, Peter Navarro convicted of contempt for defying Jan. 6 select committee

Fani Willis, left, is the district attorney for Atlanta-based Fulton County in Georgia. Her office has been probing since 2021 then-President Trump's claiming beginning in 2020 of election fraud in Georgia and elsewhere. Trump and his allies have failed to win support for their claims from Georgia's statewide election officials, who are Republican, or from courts.

New York Times, Georgia Prosecutor Sharply Rebukes House Republican Investigating Her, Richard Fausset and Danny Hakim, Sept. 8, 2023 (print ed.). Fani Willis accused Representative Jim Jordan of Ohio, below, of trying to obstruct her prosecution of the racketeering case against Donald Trump and his allies.

The district attorney leading a criminal case against Donald J. Trump and his allies in Georgia accused Representative Jim Jordan of Ohio of trying to obstruct her prosecution of the case in a sharply worded letter she sent on Thursday.

Soon after the district attorney, Fani T. Willis, a Democrat, announced last month that she was bringing a racketeering case against Mr. Trump and 18 other defendants for their efforts to overturn the results of the 2020 presidential election in Georgia, Mr. Jordan, a Republican and chairman of the House Judiciary Committee, said that he was going to investigate Ms. Willis over whether her prosecution of Mr. Trump was politically motivated.

In her letter, Ms. Willis accused Mr. Jordan of trying “to obstruct a Georgia criminal proceeding and to advance outrageous partisan misrepresentations,” and of not understanding how the state’s racketeering law works.

“Your attempt to invoke congressional authority to intrude upon and interfere with an active criminal case in Georgia is flagrantly at odds with the Constitution,” she added. “The defendants in this case have been charged under state law with committing state crimes. There is absolutely no support for Congress purporting to second guess or somehow supervise an ongoing Georgia criminal investigation and prosecution.”

The letter came as the defendants and the prosecution continued sparring in legal filings over where and when the trial would take place. In a new filing, Mark Meadows, a defendant, who served as the White House chief of staff under Mr. Trump, was seeking a stay of the proceedings in state court until a judge ruled on his motion to move his case to federal court.

The Georgia case is one of four criminal indictments that have been brought against Mr. Trump this year; Mr. Jordan’s investigation of Ms. Willis is the latest example of House Republicans using their power in Congress to try to derail efforts to prosecute the former president.

When he announced his inquiry last month, Mr. Jordan, a close Trump ally, said it would look for any evidence of communication between Ms. Willis and the Biden administration and examine her office’s use of federal grant money.

While Mr. Jordan expressed concerns that former federal officials were being unfairly targeted in a state prosecution, some of the issues he raised had little to do with the underlying facts of the investigation. For example, in a letter to Ms. Willis, he said her new campaign website had included a reference to a New York Times article that mentioned the Trump investigation.

Ms. Willis’s response is the latest sign that she will not take attacks on her office and the investigation quietly — a striking difference in style from that of Jack Smith, the more reserved and laconic special prosecutor handling the two federal criminal cases against Mr. Trump.

Sept. 5

Washington Post, Kennedy’s Supreme Court legacy is being erased, in part by past clerks, Robert Barnes, Sept. 5, 2023 (print ed.). Retired justice Anthony M. Kennedy, right, was in the front row of the Supreme Court’s marble-columned courtroom last fall when the justices reconsidered a question he had answered years ago: the reach of the Clean Water Act’s protections of the nation’s streams and wetlands.

Since 2006, industry challenges of Kennedy’s opinion, which expanded the government’s ability to set pollution regulations in environmentally sensitive areas, had consistently failed.

But it was a different Supreme Court that assembled last October. And when it handed down a decision six months later, the protections Kennedy had established were significantly stymied. Not a single justice — including two former Kennedy clerks nominated by President Donald Trump — endorsed the rules Kennedy had written 17 years earlier.

And so it goes across a wide swath of American law.

During his three decades on the court, Kennedy, nominated by President Ronald Reagan in 1988, was almost sure to be found in the majorities that prevailed on the nation’s most monumental concerns. A center-right moderate who sometimes sided with the court’s liberals, he cast the vote that established a constitutional right for same-sex couples to marry and determined how far government may intrude on the right to an abortion, and whether attempts to curtail the corrupting influence of campaign contributions violated free speech. Kennedy controlled when universities could take race into account to seek diverse student bodies, and how schools could sort pupils to ensure desegregation.

Other Kennedy votes shielded juveniles and the intellectually disabled from the death penalty, although he refused to find capital punishment unconstitutional. His mixed feelings on gun control were one reason the court hesitated to take such cases for more than a decade.

“Frankly, it’s everything important,” one of Kennedy’s former clerks, University of Virginia law professor Richard Re, said of the cases whose outcome rested on the justice’s vote.

But on a court that has moved decidedly to the right, Kennedy’s mark is fading fast — and is already erased in some areas. To a large extent, Justices Neil M. Gorsuch and Brett M. Kavanaugh — former clerks who are more conservative than their old boss — are part of the reason.

Sept. 1

 United States Supreme Court Justice Clarence Thomas shown in a file photo speaking at the McConnell Center, named for Republican Minority Leader Mitch McConnell, the longtime U.S. senator from Kentucky.

New York Times, Justice Thomas Defends Trips With Texas Billionaire in Financial Disclosure, Abbie VanSickle, Sept. 1, 2023 (print ed.). The latest disclosures from Justices Clarence Thomas and Samuel Alito come amid increased scrutiny of their dealings and the court’s lack of an ethics code.

Justice Clarence Thomas, in his annual financial disclosure form that was released Thursday, responded in detail to reports that he had failed to disclose luxury trips, flights on a private jet and a real estate transaction with a Texas billionaire.

In an unusual move, the justice included a statement defending his travel with the billionaire, Harlan Crow, who has donated to conservative causes.

The latest financial disclosures come as the justices face increased scrutiny about their financial dealings and about the court’s lack of an ethics code. Although the justices, like other federal judges, are required to file annual reports that document their investments, gifts and travel, the justices are not bound by ethics rules, instead following what Chief Justice John G. Roberts Jr. has referred to as a set of foundational “ethics principles and practices.”

The justices file the financial forms each spring, and most were released in early June. But Justices Thomas and Samuel A. Alito Jr. requested 90-day extensions, according to the Administrative Office of the U.S. Courts, which collects and publishes the forms. Justice Alito’s financial disclosure form was also released on Thursday morning.

Justice Thomas also acknowledged errors in his previous financial reports, including personal bank accounts and his wife’s life insurance, which he said were “inadvertently omitted from prior reports.”

The justice also listed four trips from 2022, the year covered by the form. Three of the trips were speaking engagements. The fourth, from July 2022, was a trip to Mr. Crow’s estate in the Adirondacks.

The nature of Justice Thomas’s decades-long relationship with Mr. Crow has elicited questions after a series of reports in ProPublica described the extent of his generosity and the justice’s failure to disclose it. Mr. Crow treated the justice on a series of lavish trips, including flights on his private jet, island-hopping on his superyacht and vacationing at his estate in the Adirondacks. Mr. Crow also bought the justice’s mother’s home in Savannah, Ga., and covered a portion of private school tuition for the justice’s great-nephew, whom he was raising.

Other wealthy friends have hosted Justice Thomas, including David L. Sokol, the former heir apparent to Berkshire Hathaway. Another, Anthony Welters, underwrote — at least in part — his motor coach, a 40-foot Prevost Marathon that he has said allows him to slip away from the “meanness that you see in Washington.”

Justice Alito, for his part, acknowledged in June that he had taken a private plane on a vacation in 2008 to a luxury fishing lodge in Alaska, where he was hosted by Paul Singer, a hedge fund billionaire. In the years that followed, Mr. Singer repeatedly had business before the court.

Read the forms from Justices Clarence Thomas and Samuel A. Alito Jr.

In his disclosure, Justice Thomas addressed his decision to fly on Mr. Crow’s private jet, suggesting that he had been advised to avoid commercial travel after the leak of the draft opinion overturning Roe v. Wade and eliminating a constitutional right to an abortion.

“Because of the increased security risk following the Dobbs opinion leak, the May flights were by private plane for official travel as filer’s security detail recommended noncommercial travel whenever possible,” Justice Thomas wrote.

Justice Thomas also defended his past filings, which did not include many of the trips with Mr. Crow and other wealthy friends. He wrote that he had “adhered to the then existing judicial regulations as his colleagues had done, both in practice and in consultation with the Judicial Conference.”

But he said he “continues to work with Supreme Court officials and the committee staff for guidance on whether he should further amend his reports from any prior years.”

August

Aug. 27

The Guardian, Billionaire-linked US thinktank behind supreme court wealth tax case lobbying, Stephanie Kirchgaessner and Dominic Rushe, Aug. 27, 2023. Manhattan Institute one of eight conservative advocacy groups that filed amicus briefs urging the court to hear 'Moore v US.'

An influential thinktank closely linked to two billionaires who provided lavish travel gifts to conservative supreme court justices is behind a successful lobbying campaign to get the US high court to take on a case that could protect them and other billionaires from a possible future wealth tax.

The Manhattan Institute was one of eight conservative advocacy groups that filed amicus briefs urging the supreme court to take on Moore v US, a $15,000 tax case that Democrats have warned could permanently “lock in” the right of billionaires to opt out of paying fair taxes.

The billionaire hedge fund manager Paul Singer is chairman of the Manhattan Institute and Kathy Crow, who is married to the real estate mogul Harlan Crow, serves as a trustee of the group. Both have provided two of the justices – Samuel Alito and Clarence Thomas, respectively – with private travel gifts and have socialised with the judges on lavish vacations, according to reports in ProPublica and other media outlets.

The revelations have stoked serious accusations of ethical and legal violations by the two rightwing justices, who failed to disclose the travel and – in Thomas’s case – hundreds of thousands of dollars in additional gifts from the Crows, including property purchases and private tuition payments for Thomas’s great-nephew.

Thomas has called the Crows his “dearest friends” and claimed Harlan Crow “did not have business before the Court”. Alito has said he could recall speaking to Singer only on a “handful of occasions” and that the two had never discussed Singer’s business or issues before the court.

But Alito and Thomas’s dealings with the conservative billionaires have nevertheless raised questions about how the justices’ close ties might influence which cases are taken on by the court.

The supreme court announced it would hear Moore vs US on 26 June. On its face, the case appears to be centered on a relatively minor tax dispute between Charles and Kathleen Moore, a Washington-state couple, and the US government.

Charles Moore spent most of his career as a software engineer at Microsoft, where he met one of the future founders of KisanKraft, a company that provides low-cost tools to farmers in India.

In 2006, the Moores invested about $40,000 in KisanKraft. The investment gave them an 11% stake in the company, which made profits but did not pay dividends, the Moores said.

In 2017, the Trump administration passed the Tax Cuts and Jobs Act, a law that contained a one-off levy on US corporations’ foreign earnings – the Mandatory Repatriation Tax (MRT). It was estimated that MRT would raise $340bn in tax revenue. To the Moores’ chagrin, it also created an unexpected $15,000 tax liability in connection to their KisanKraft holding.

The tax was unfair and unconstitutional – they argue – because they never realized any gains from the investment. In a video interview of the couple created by the rightwing Competitive Enterprise Institute (CEI) – which took on a key role in the legal matter – the couple explain their decision to take legal action.

The only “return” the couple had made, Kathleen noted, was knowing that the company was helping and reaching people “all over India”. “We are doing this because we strongly believe in the rule of law in this country,” said Charles.

The couple enlisted the help of the CEI and one of the most powerful and well-connected law firms in Washington, BakerHostetler, whose clients have included Boeing, ExxonMobil and Major League Baseball, and sued the US government. 

New York Times, Two Justices Clash on Congress’s Power Over Supreme Court Ethics, Adam Liptak, Aug. 27, 2023 (print ed.). Justices Samuel Alito and Elena Kagan sketched out dueling conceptions of their institution’s place in the constitutional structure.

As a young lawyer in the Reagan White House, John G. Roberts Jr., right, was tartly dismissive of the Supreme Court’s long summer break, which stretches from the end of June to the first Monday in October.

“Only Supreme Court justices and schoolchildren,” he wrote in 1983, “are expected to and do take the entire summer off.”

On the other hand, the young lawyer wrote, there is an upside to the break: “We know that the Constitution is safe for the summer.”

These days, members of the court find time to quarrel about the Constitution even in the warm months. The primary antagonists lately have been Justices Samuel A. Alito Jr., above, and Elena Kagan, below left.

Last summer, they clashed over whether decisions like the one eliminating the constitutional right to abortion threatened the court’s legitimacy.

In recent months, the two justices have continued to spar, though on a different subject: whether Congress has the constitutional authority to regulate aspects of the court’s work.

The question is timely, of course, as news reports have raised ethical questions about, among other things, luxury travel provided to Justices Alito and Clarence Thomas. Those reports have led to proposed legislation to impose new ethics rules on the court.

Justice Alito, in an interview published in The Wall Street Journal last month, appeared to object, saying that “Congress did not create the Supreme Court.”

He added: “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”

Aug. 26

World Crisis Radio, World Strategic Roundup and Activisim Recommendations: Twilight of Trump, Webster G. Tarpley, right, historian, commentator, Aug. 26, 2023 (129:41 mins.). In Atlanta, MAGA boss is arrested for fourth time as mindless corporate media keep raving that indictments only make him stronger! Three Trump co-defendants allege he ordered their misdeeds, foreshadowing flipping to come;

Activating Fourteenth Amendment ban on insurrectionists holding federal office rapidly gains prestigious bipartisan support from scholars and elected officials; Need legal action now by states to banish Don from ballot well before primary voting starts in January 2024;

Prigozhin, right, ends as homicidal monster and his top staffers fall victim to assassination by Putin’s secret police; Wagner mercenary units, Putin’s Foreign Legion, decapitated and in disarray; Prigozhin’s epitaph is statement admitting that there was no NATO threat to Russia on eve of February 2022 invasion -- an embarrassing fact for Mearsheimer, Chomsky, RFK Jr., Wagenknecht and other avid appeasers;

Ukrainian forces capture Robotyne on road to Melitopol and Sea of Azov, widening the breach in the first Russian defense line; Repeated strikes on Moscow and targets inside Russia; Debate on how many axes of attack are optimal;

BRICS may be viewed as a pressure group, a propaganda agency, a school of rhetoric, a brand of nostalgia, or a photo op, but they are incapable of joint action: no joint currency to challenge US dollar and no moral standing as they support the butcher of Ukraine, who is making them starve;

GOP debate shows absolute depravity of this moribund party; 60 years since Martin Luther King’s ”I have a dream” speech at the Lincoln Memorial; Trump’s rogue’s gallery photo depicts cornered kingpin snarling into the abyss.

Aug. 22

 Ultra-right Republican dark money legal powerbroker Leonard Leo is shown above.

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, D.C. Attorney General is probing Leonard Leo’s network, Heidi Przybyla, Aug. 22, 2023. The Federalist Society co-chair and ex-Trump judicial adviser has utilized nonprofit groups to collect more than $1 billion for conservative causes.

Washington D.C. Attorney General Brian Schwalb is investigating judicial activist Leonard Leo and his network of nonprofit groups, according to a person with direct knowledge of the probe.

The scope of the investigation is unclear. But it comes after POLITICO reported in March that one of Leo’s nonprofits — registered as a charity — paid his for-profit company tens of millions of dollars in the two years since he joined the company. A few weeks later, a progressive watchdog group filed a complaint with the D.C. attorney general and the IRS requesting a probe into what services were provided and whether Leo was in violation of laws against using charities for personal enrichment.

David B. Rivkin Jr., an attorney for the parties in the investigation, said in a statement that the complaint “is sloppy, deceptive and legally flawed and we are addressing this fully with the DC Attorney General’s office.”

The news of the investigation comes as the nonprofit that was a subject of the complaint quietly relocated in recent weeks from the capital area to Texas, according to paperwork filed in Virginia and Texas. For nearly 20 years the nonprofit, now known as The 85 Fund, had been incorporated in Virginia.

Gabe Shoglow-Rubenstein, Schwalb’s communications director, declined to confirm or deny the existence of the probe, including whether the attorney general took any action in response to the complaint.

Schwalb, who took office in January, has a background in tax law and served as a trial attorney in the tax division of the Department of Justice under President Bill Clinton.

Best known as Donald Trump’s White House “court whisperer,” Leo played a behind-the-scenes role in the nominations of all three of the former president’s Supreme Court justices and promoted them through his multi-billion-dollar network of nonprofits. Trump chose his three Supreme Court picks, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, from a list drawn up by Leo. More recently, Leo was the beneficiary of a $1.6 billion contribution, believed to be the biggest political donation in U.S. history.

He is also the co-chair of the Federalist Society, the academic arm of the conservative legal movement, for which he worked in various capacities for decades while building his donor base.

While Leo grants few interviews, in mid-July he was featured in a two-part podcast with the Maine Wire, a conservative news organization. Asked why he’s become a “lightening rod for criticism,” Leo cited his commitment to “defend the Constitution” and spoke about the “long history” of dark money in U.S. politics.

Aug. 10

Washington Post, Clarence Thomas reportedly received at least 38 destination vacations from wealthy benefactors, Theodoric Meyer, Leigh Ann Caldwell and Tobi Raji, Aug. 10, 2023. The explosive revelations this year about Supreme Court Justice Clarence Thomas’s relationships with wealthy benefactors have spurred calls for tougher ethics rules for the court — and ProPublica’s Brett Murphy and Alex Mierjeski are out with a new report this morning on how extensive those ties are.

Thomas’s friends and acquaintances “have treated him to far-flung vacations aboard their yachts, ushered him into the premium suites at sporting events and sent their private jets to fetch him — including, on more than one occasion, an entire 737,” Brett and Alex report.

The gifts include:

• “At least 38 destination vacations, including a previously unreported voyage on a yacht around the Bahamas”
• Twenty-six private jet flights and eight helicopter flights
• A “dozen VIP passes to professional and college sporting events, typically perched in the skybox”
• “Two stays at luxury resorts in Florida and Jamaica”
• A “standing invitation to an uber-exclusive golf club overlooking the Atlantic coast”

“While some of the hospitality, such as stays in personal homes, may not have required disclosure, Thomas appears to have violated the law by failing to disclose flights, yacht cruises and expensive sports tickets,” ethics experts told ProPublica.

“Perhaps even more significant, the pattern exposes consistent violations of judicial norms, experts, including seven current and former federal judges appointed by both parties, told ProPublica.”

“‘In my career I don’t remember ever seeing this degree of largesse given to anybody,‘ said Jeremy Fogel, a former federal judge who served for years on the judicial committee that reviews judges’ financial disclosures. ‘I think it’s unprecedented.’”

Aug. 9

New York Times, Supreme Court Revives President Biden’s Regulation of ‘Ghost Guns,’ Adam Liptak, Aug. 9, 2023 (print ed.). The Supreme Court on Tuesday temporarily revived the Biden administration’s regulation of “ghost guns” — kits that can be bought online and assembled into untraceable homemade firearms.

In defending the rule, a key part of President Biden’s broader effort to address gun violence, administration officials said such weapons had soared in popularity in recent years, particularly among criminals barred from buying ordinary guns.

The court’s brief order gave no reasons, which is typical when the justices act on emergency applications. The order was provisional, leaving the regulation in place while a challenge moves forward in the courts.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett joining the court’s three liberal members — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — to form a majority.

Citing a rise in violence involving untraced firearms, the federal government had asked the justices to step in. The court provisionally allowed the regulation. Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh noted dissents. Like the justices in the majority, they did not explain their reasoning.

The regulation, issued in 2022 by the Bureau of Alcohol, Tobacco, Firearms and Explosives, broadened the bureau’s interpretation of the definition of “firearm” in the Gun Control Act of 1968.

The change, Solicitor General Elizabeth B. Prelogar wrote in the Biden administration’s emergency application, was needed to respond to “the urgent public safety and law enforcement crisis posed by the exponential rise of untraceable firearms.”

The new regulation did not ban the sale or possession of kits and components that can be assembled to make guns, she wrote, but it did require manufacturers and sellers to obtain licenses, mark their products with serial numbers and conduct background checks.

Gun owners, advocacy groups and companies that make or distribute the kits and components sued to challenge the regulations, saying that they were not authorized by the 1968 law.

Aug. 5

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

New York Times, Clarence Thomas’s $267,230 R.V. and the Friend Who Financed It, Jo Becker and Julie Tate, Aug. 5, 2023. The vehicle is a key part of the Supreme Court justice’s just-folks persona. It’s also a luxury motor coach that was funded by someone else’s money.

Justice Clarence Thomas met the recreational vehicle of his dreams in Phoenix, on a November Friday in 1999.

With some time to kill before an event that night, he headed to a dealership just west of the airport. There sat a used Prevost Le Mirage XL Marathon, eight years old and 40 feet long, with orange flames licking down the sides. In the words of one of his biographers, “he kicked the tires and climbed aboard,” then quickly negotiated a handshake deal. A few weeks later, Justice Thomas drove his new motor coach off the lot and into his everyman, up-by-the-bootstraps self-mythology.

There he is behind the wheel during a rare 2007 interview with “60 Minutes,” talking about how the steel-clad converted bus allows him to escape the “meanness that you see in Washington.” He regularly slips into his speeches his love of driving it through the American heartland — “the part we fly over.” And in a documentary financed by conservative admirers, Justice Thomas, who was born into poverty in Georgia, waxes rhapsodic about the familiarity of spending time with the regular folks he meets along the way in R.V. parks and Walmart parking lots.

“I don’t have any problem with going to Europe, but I prefer the United States, and I prefer seeing the regular parts of the United States,” he told the filmmakers, adding: “There’s something normal to me about it. I come from regular stock, and I prefer being around that.”

But there is an untold, and far more complex, back story to Justice Thomas’s R.V. — one that not only undercuts the mythology but also leaves unanswered a host of questions about whether the justice received, and failed to disclose, a lavish gift from a wealthy friend.

His Prevost Marathon cost $267,230, according to title history records obtained by The New York Times. And Justice Thomas, who in the ensuing years would tell friends how he had scrimped and saved to afford the motor coach, did not buy it on his own. In fact, the purchase was underwritten, at least in part, by Anthony Welters, a close friend who made his fortune in the health care industry.

He provided Justice Thomas with financing that experts said a bank would have been unlikely to extend — not only because Justice Thomas was already carrying a lot of debt, but because the Marathon brand’s high level of customization makes its used motor coaches difficult to value.

In an email to The Times, Mr. Welters wrote: “Here is what I can share. Twenty-five years ago, I loaned a friend money, as I have other friends and family. We’ve all been on one side or the other of that equation. He used it to buy a recreational vehicle, which is a passion of his.” Roughly nine years later, “the loan was satisfied,” Mr. Welters added. He subsequently sent The Times a photograph of the original title bearing his signature and a handwritten “lien release” date of Nov. 22, 2008.

But despite repeated requests over nearly two weeks, Mr. Welters did not answer further questions essential to understanding his arrangement with Justice Thomas.

He would not say how much he had lent Justice Thomas, how much the justice had repaid and whether any of the debt had been forgiven or otherwise discharged. He declined to provide The Times with a copy of a loan agreement — or even say if one existed. Nor would he share the basic terms of the loan, such as what, if any, interest rate had been charged or whether Justice Thomas had adhered to an agreed-upon repayment schedule. And when asked to elaborate on what he had meant when he said the loan had been “satisfied,” he did not respond.

“‘Satisfied’ doesn’t necessarily mean someone paid the loan back,” said Michael Hamersley, a tax lawyer and expert who has testified before Congress. “‘Satisfied’ could also mean the lender formally forgave the debt, or otherwise just stopped pursuing repayment.”

Justice Thomas, for his part, did not respond to detailed questions about the loan, sent to him through the Supreme Court’s spokeswoman.

The two men’s silence serves to obscure whether Justice Thomas had an obligation to report the arrangement under a federal ethics law that requires justices to disclose certain gifts, liabilities and other financial dealings that could pose conflicts of interest.

Aug. 1

Washington Post, DEVELOPING: Jan. 6 grand jury probing efforts to overturn 2020 election issues indictment, Devlin Barrett, Spencer S. Hsu, Perry Stein and Josh Dawsey, Aug. 1, 2023. Trump indicted on four counts, including obstruction and conspiracy. Indictment is the first to emerge from special counsel Jack Smith’s probe of the underpinnings of the Jan. 6 riot and the campaign to reverse Joe Biden’s victory.

A grand jury investigating the efforts of former president Donald Trump and others to overturn the results of the 2020 election has returned an indictment, though the document remained under seal and it was not immediately clear who was charged, or with what alleged crimes.

Reporters observed a prosecutor with special counsel Jack Smith’s office and the foreperson of a grand jury that has been active for many months examining the events surrounding Jan. 6 deliver the indictment Tuesday evening to a magistrate judge in federal court in Washington, D.C.

• Read the indictment here.

That grand jury panel gathered Tuesday, and left the courthouse in the afternoon.

The indictment could mark a major new phase in Smith’s investigation of the former president and his aides and allies, coming nearly two months after Trump and his longtime valet were indicted for allegedly mishandling classified documents and scheming to prevent government officials from retrieving them.

Trump, who has pleaded not guilty in the documents case, denies all wrongdoing related to the 2020 election as well. He announced on social media on July 18 that his lawyers had been told he was a target in the election-focused probe.

Smith, shown above, was tapped in November to take charge of the both high-profile investigations, after Trump launched his 2024 presidential election campaign and Attorney General Merrick Garland — an appointee of President Biden — concluded that an independent prosecutor should oversee the probes.

Indictment is the first to emerge from special counsel Jack Smith’s probe of the underpinnings of the Jan. 6 riot and the campaign to reverse Joe Biden’s victory.
A state grand jury in Fulton County, Ga., is also considering whether to file broad charges against Trump and his lawyers, advocates, and aides over their efforts to undo the 2020 election results. A decision on that front is expected in August, although previous plans to announce a charging decision have been delayed. Michigan and Arizona are also investigating aspects of the efforts to block Biden’s victory in their states.

Washington Post, Michigan Republicans charged in connection with 2020 voting machine tampering, Patrick Marley and Aaron Schaffer, Aug. 1, 2023. A Michigan grand jury charged a former state lawmaker and a losing candidate for state attorney general as part of an investigation into the improper acquisition of voting machines.

A Michigan prosecutor charged a former state lawmaker and a losing candidate for state attorney general Tuesday as part of an investigation into the improper acquisition of voting machines.

Special prosecutor D.J. Hilson since last year has been looking into efforts by a group of conservatives to persuade election clerks to give them voting machines as they attempted to prove the 2020 presidential election had been wrongly called for Joe Biden over Donald Trump. The group never turned up any proof, and courts in dozens of cases across the country ruled that the election was properly decided.

Former attorney general candidate Matthew DePerno (R) was charged with improper possession of a voting machine, conspiracy to unlawfully possess a voting machine, conspiracy to gain unauthorized access to a computer system and willfully damaging a voting machine, according to Hilson. Former state representative Daire Rendon (R) was charged with conspiracy to unlawfully possess a voting machine and using false pretenses with the intent to defraud, he said. Both were arraigned Tuesday and released.

July

July 29

Washington Post, Alito says Congress has no authority to police Supreme Court ethics, Robert Barnes, July 29, 2023. Justice Samuel A. Alito Jr., above, said in an interview published Friday that Congress has no authority to impose an ethics policy on the Supreme Court, and he hinted that other justices share his view.

In a piece that appeared in the Wall Street Journal opinions section, Alito noted that he and other justices voluntarily comply with disclosure statutes, but he said mandating an ethics code would be beyond Congress’s powers.

“I know this is a controversial view, but I’m willing to say it,” Alito said. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”

Asked if other justices agree, Alito replied: “I don’t know that any of my colleagues have spoken about it publicly, so I don’t think I should say. But I think it is something we have all thought about.” Allegations of ethics breaches among the justices and reports of luxurious vacations paid for by private benefactors — including a fishing trip to Alaska for Alito — have put the court in the spotlight recently. Last week the Senate Judiciary Committee voted along party lines to advance the Supreme Court Ethics, Recusal and Transparency Act, which seeks to impose on the court disclosure rules as strict as those governing members of the House and the Senate.

It is unusual for a justice to comment so definitively on the constitutionality of legislation, especially when bills are under consideration, and any law that is passed could come before the court.

The Journal article, headlined “Samuel Alito, the Supreme Court’s Plain-Spoken Defender,” was notable for another reason: It was written in part by David B. Rivkin Jr., a Washington lawyer well-known in conservative legal circles, who has an upcoming case before the court. Rivkin parenthetically disclosed that in the piece, writing that he and his law partner Andrew Grossman represent a couple in Moore v. U.S., a tax dispute the Supreme Court will hear in the coming term.

Rivkin and Journal editorial features editor James Taranto noted that Alito has now spoken with them “on the record for four hours in two wide-ranging sessions,” one in April in Alito’s chambers and the other in early July in the Journal’s New York offices.

The court granted Rivkin’s petition to hear Moore v. U.S. at the end of June.

As the subject of Supreme Court ethics has taken a more urgent tone, it has also acquired a partisan sheen, with Republicans saying the call for stronger ethics and disclosure rules is a ploy to delegitimize an increasingly conservative court because liberals disagree with its decisions. That division seems to doom the ethics bill’s chances in the Senate, and there is no interest among Republican leaders of the House in pushing such legislation.

Constitutional scholars who testified before the Senate committee split on the role Congress may play in prescribing the ethical responsibilities of a separate branch of government, although there is no dispute about Congress’s authority regarding federal courts below the Supreme Court.

• Salon, Investigative Commentary: Samuel Alito and the fishing trip that set the world on fire, Sabrina Haake, July 20, 2023. How the Supreme Court's Citizens United decision made climate change worse.
• New York Times, Democrats to Press Supreme Court Ethics Rules Over G.O.P. Opposition, Carl Hulse, July 17, 2023. The Senate Judiciary Committee is slated to approve new disclosure requirements, although the legislation is unlikely to advance.

July 26

Wayne Madsen Report,  Investigative Commentary: Is Opus Dei behind Ron DeSantis's far-right politics? Wayne Madsen, left, author of 23 books and former Navy intelligence officer, July 25-26, 2023. It is an international organization that is so secret it refuses to publish membership lists. This shadowy cabal has infiltrated the upper echelons of government, business, and religion with operatives intent on furthering the cause of fascism.

It may count at least four members of the nine-member U.S. Supreme Court in its ranks, as well as dozens of members of the U.S. Congress. Contrary to how this group was dramatized in the film “The DaVinci Code,” its members do not wear cowls while hiding in the shadows but are adorned in expensive business suits. This group, the Roman Catholic order known as Opus Dei, is perhaps the greatest threat to democracy the world has seen since Nazi Germany.

Headquartered at 73 Viale Bruno Buozzi in Rome, Opus Dei was founded in 1928 by Spanish priest, Josemaría Escriva, right,. Opus Dei, which has been derisively nicknamed “Octopus Dei,” became the religious underpinning for General Francisco Franco’s Falangist movement, which espoused fascism in Spain and, through Falangist agents aided by Opus Dei priests, around the world. Opus Dei would not have become a worldwide order espousing fascism had it not been for Popes Pius XII, John Paul II, and Benedict XVI, all of whom promoted the order within the hierarchy of the Catholic Church. In 2005, Benedict ordered a statue of Escriva erected within St. Peter’s Basilica in the Vatican. Before he was elevated to pontiff as John Paul I, Albino Luciani, while Cardinal-Priest of San Marco in Rome, used the term “radical” to describe Escriva.

It was Archbishop of Washington, DC, John McCloskey, left, the former director of Opus Dei’s Washington headquarters – masked as the Catholic Information Center (CIC) on K Street -- who helped greatly expand Opus Dei’s influence in the nation’s capital. McCloskey was also the first Opus Dei official charged with sexual misconduct. In McCloskey’s case, it involved a woman during his time as CIC director. McCloskey presided over several conversions to Catholicism by leading Washington politicos and pundits, including Newt Gingrich, Robert Novak, Larry Kudlow, Sam Brownback, Blackwater mercenary firm founder Erik Prince, and Bernard Nathanson, the latter a gynecologist and co-founder of the National Association for the Repeal of Abortion Laws (NARAL) who became a leading anti-abortion activist.

Opus Dei is believed to count among its most ardent supernumeraries and other lay supporters Supreme Court Associate Justice Clarence Thomas and his wife, the extremist Republican Ginni Thomas; Trump Attorney General William Barr and his “Russiagate” special counsel John Durham; Trump White House Counsel Pat Cipollone; Trump’s former acting chief of staff Mick Mulvaney; the author of the infamous anti-abortion Hyde Amendment, the late Representative Henry Hyde of Illinois; the late Solicitor General and failed Supreme Court nominee Robert Bork; former Senator Rick Santorum of Pennsylvania; and most disturbing, Leonard Leo, the head of the far-right Federalist Society that has served as a virtual employment agency for right-wing judges, including Supreme Court Associate Justices Samuel Alito, Brett Kavanaugh, Amy Coney Barrett, Neil Gorsuch, as well as Thomas and Chief Justice John Roberts. All but Gorsuch are Catholic, but he was raised as one.

July 25

Washington Post, Biden lawyer who defended affirmative action grapples with diversity in her own office, Tobi Raji and Theodoric Meyer, July 25, 2023. When Solicitor General Elizabeth B. Prelogar defended college affirmative action programs before the Supreme Court in October, she cited the lack of diversity in a group of people the justices know well: the lawyers who argue before them.

Just two of 27 lawyers who appeared before the court over the next two weeks would be women, Prelogar told the justices — a statistic that she argued could lead women to wonder whether they have a shot at arguing before the Supreme Court.

Prelogar cited only the dearth of women and not of Black and Hispanic lawyers arguing before the court, but her message in a case dealing with race-conscious admissions programs was clear.

“When there is that kind of gross disparity in representation, it can matter and it’s common sense,” she told the justices.
Elizabeth B. Prelogar at her nomination hearing to be solicitor general on Sept. 14, 2021. (Rod Lamkey/Consolidated News Photos)

Her argument didn’t sway the court’s conservative majority, which ruled last month that Harvard and the University of North Carolina’s affirmative action programs were unconstitutional.

It did garner the attention of the court’s three liberal justices, who cited Prelogar’s remarks in a dissent, warning that “inequality in the pipeline to this institution, too, will deepen.”

But a similar lack of diversity to the one Prelogar pointed out in her argument has persisted for years in the solicitor general’s office, which is part of the Justice Department and represents the federal government before the Supreme Court.

Over the past dozen terms, nearly three-quarters of Supreme Court arguments made by lawyers in the office have been delivered by men, according to an analysis by The Washington Post.

More than 80 percent have been made by White lawyers, according to the analysis of the office’s attorneys whose race could be confirmed. No Hispanic lawyer has argued a case for the office since 2016. No Black lawyer has done so since 2012.

July 21

Washington Post, A longtime Federalist Society executive helped fund a media campaign lionizing Clarence Thomas, Shawn Boburg, Emma Brown and Ann E. Marimow, July 21, 2023 (print ed.). The 25th anniversary of Clarence Thomas’s confirmation to the Supreme Court was approaching — a moment that would draw attention to his accomplishments on the bench but also to the misconduct claims that had nearly derailed his rise.

Among the wave of retrospective accounts set to come out that year, 2016, was a star-studded HBO film dramatically recounting Anita Hill’s sexual harassment allegations.

That spring, a flurry of opinion articles defending Thomas and railing against the film appeared in news outlets, penned by a D.C. lawyer who had worked in the George H.W. Bush White House during the confirmation. Websites celebrating Thomas’s career — and attacking his onetime accuser — popped up. And on Twitter, a new account using the name “Justice Thomas Fan Account” began serving up flattering commentary.

“Justice Thomas: The most open & personable of Justices, intimate in sharing his feelings, easily moved to laughter,” read one early tweet on the account.

It was not apparent at the time, but the rush of favorable content was part of a coordinated and sophisticated public relations campaign to defend and celebrate Thomas, according to a Washington Post examination of public and internal records and interviews with people familiar with the effort. The campaign would stretch on for years and include the creation and promotion of a laudatory film about Thomas, advertising to boost positive content about him during internet searches and publication of a book about his life. It was financed with at least $1.8 million from conservative nonprofit groups steered by the judicial activist Leonard Leo, above, the examination found.

Leo, a longtime executive of the Federalist Society, the influential nonprofit organization for conservative and libertarian lawyers, is well-known for his efforts to push the judiciary to the right. Using a network of closely related nonprofits over which he holds sway, Leo has led advocacy campaigns to help confirm every conservative Supreme Court justice over the past two decades. He advised President Donald Trump on his selection of three justices.

The public relations campaign shows how he has continued to exert influence in support of right-leaning justices after helping them secure lifetime appointments. It adds to an emerging portrait of Leo as a behind-the-scenes benefactor, defending the justices from public criticism and exalting their jurisprudence while tending to personal matters including private travel and a spouse’s employment.

Leo steered tens of thousands of dollars in consulting payments to Thomas’s wife, Virginia “Ginni” Thomas, in 2012, The Post reported recently. He also arranged a fishing trip to Alaska for Justice Samuel Alito in 2008, a vacation that included a free ride on the private jet of a billionaire businessman who later had interests before the court, ProPublica reported. Those and other revelations about wealthy conservative donors gaining access to justices outside the public eye have brought scrutiny to the court in recent months.

The resources available to Leo expanded vastly in 2020, when a nonprofit organization he chairs received a $1.6 billion contribution from the Chicago businessman Barre Seid.

The extent of Leo’s involvement in the public relations campaign, including the financial backing for websites and articles defending Thomas, has not been previously disclosed. Leo declined to answer detailed questions from The Post about his role in the campaign. In a statement, he praised the film he helped finance about Thomas, titled “Created Equal: Clarence Thomas in His Own Words.”

“Our network was thrilled that Created Equal brought Justice Clarence Thomas, in his own words, into the homes of millions of Americans, so they could learn firsthand who he is, what he stands for, and what the Constitution really means,” Leo said in the statement.

He also noted that liberal Justice Ruth Bader Ginsburg had been the subject of a documentary, “RBG,” distributed by a company that says it creates content that “stands at the intersection of art and activism” and whose founder has donated to left-leaning causes.

July 20

Salon, Investigative Commentary: Samuel Alito and the fishing trip that set the world on fire, Sabrina Haake, July 20, 2023. How the Supreme Court's Citizens United decision made climate change worse.

As U.S. temperatures set new records during yet another scorching summer, a Union of Concerned Scientists has revealed a list of politicians who protect the fossil fuel industry in exchange for campaign funds, a climate-destroying quid pro quo enabled by the Supreme Court's 2010 Citizens United decision.

Predicate facts underlying Citizens United were in play when Justice Samuel Alito, shown above, accepted an expense-paid Alaskan retreat with Paul Singer, above, a billionaire fossil fuel investor, major GOP donor, and hedge-fund manager with cases before the court. The exclusive fishing junket was arranged by Leonard Leo, a Federalist Society activist who fights climate science and works to put conservative jurists with similar views on the federal bench.

At first blush, the Alito-Singer trip was covered as just another right-wing justice accepting gifts from conservative donors with interests before the court. On second look, however, it is apparent that the blossoming rot of dark money is what continues to cripple the U.S. response to climate change, even as forests burn around us and temperatures approach the uninhabitable.

Responding to criticism about his trip- and his failure to report it on his financial disclosures- Alito didn't address campaign finance, Leo, or the pernicious effects of Citizens United. Instead, Alito delivered a misleading rebuke wrapped in entitlement.

On his failure to recuse, Alito claims he was unaware of Singer's interest in at least ten cases before the court, even though Singer's role was heavily covered by the media. Alito explained, "Mr. Singer was not listed as a party… The entities that ProPublica claims are connected to Mr. Singer all appear to be either limited liability corporations or limited liability partnerships." Corporate entities, Alito knows, do not typically list the names of directors, investors, or major shareholders in case captions except in rare cases asserting personal liability.

Alito also said he's reviewed "hundreds of thousands" of petitions for certiorari review, suggesting there were simply too many cases to track. However, the Supreme Court hears only between 100 to 150 cases each year. In his long 17 years on the court, Alito has heard 2550 cases at most, making his reference to "hundreds of thousands" of certiorari petitions intentionally misleading. He also invoked Supreme Court Rule 29.6 to legitimize his claim that staff- not he- checks for conflicts, and that it is "utterly impossible" for his staff to search filings with the SEC to identify individuals with financial interests before the court. Rule 29.6 requires disclosure of company interests, not individuals, and his staff didn't go on a personal junket with Singer, Alito did.

Even if his misleading explanations on recusal somehow passed the sniff test, Alito recently voted to dismantle EPA climate protections while his wife was under contract to develop fossil fuels on family land. If his own family's business interests don't present a conflict of interest prompting recusal, his fishing buddy's wouldn't either.

July 19

Washington Post, Opinion: Ramaswamy’s court stunt will harness future justices to partisan goals, Ruth Marcus, July 19, 2023. Given his standing in the polls, GOP presidential candidate Vivek Ramaswamy’s move to release his shortlist of Supreme Court nominees might be more stunt than threat. Still, it’s a telling one — not just about the salience of the courts as a Republican campaign issue but also about the extreme nature of his party’s constitutional vision and the colossal legal stakes at play in the 2024 election.

It was Donald Trump who launched the pernicious practice of identifying potential Supreme Court nominees in May 2016, when he was the presumptive GOP nominee, with a list curated by the Federalist Society’s Leonard Leo and designed to assuage the anxieties of the party’s evangelical Christian base.

This worked brilliantly for Trump. The list, released as the high court had a vacant seat created by the death of Justice Antonin Scalia, arguably helped secure his election. But it also set a terrible precedent, using judges as pawns in a political campaign and implicitly encouraging sitting judges to issue rulings that would improve their odds of getting nominated to higher courts.

Now, Ramaswamy is two-upping Trump — perhaps even three-upping. First, the 37-year-old biotech entrepreneur issued his handpicked list of nine Supreme Court candidates at a far earlier stage of the process. The contenders include Republican Sens. Mike Lee (Utah) and Ted Cruz (Tex.), and Judge James C. Ho of the ultraconservative U.S. Court of Appeals for the 5th Circuit.

Second, rather than stopping at the top job, Ramaswamy identified seven other judges for promotion to federal appeals courts, including U.S. District Judge Matthew Kacsmaryk, the Texas judge who, among other terrible rulings, blocked the use of abortion drug mifepristone.

July 18

Trump Defense Secretary Mark Esper, shown in a file photo at right with then-President Trump, has published a harsh assessment of Trump's willingness to break law and other norms to retain power and punish his perceived opponents.

New York Times, Trump and Allies Forge Plans to Increase Presidential Power in 2025, Jonathan Swan, Charlie Savage and Maggie Haberman, July 18, 2023 (print ed.). Former President Trump and his backers aim to strengthen the power of the White House and limit the independence of federal agencies.

Donald J. Trump and his allies are planning a sweeping expansion of presidential power over the machinery of government if voters return him to the White House in 2025, reshaping the structure of the executive branch to concentrate far greater authority directly in his hands.

Their plans to centralize more power in the Oval Office stretch far beyond the former president’s recent remarks that he would order a criminal investigation into his political rival, President Biden, signaling his intent to end the post-Watergate norm of Justice Department independence from White House political control.

Mr. Trump and his associates have a broader goal: to alter the balance of power by increasing the president’s authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House, according to a review of his campaign policy proposals and interviews with people close to him.

Mr. Trump intends to bring independent agencies — like the Federal Communications Commission, which makes and enforces rules for television and internet companies, and the Federal Trade Commission, which enforces various antitrust and other consumer protection rules against businesses — under direct presidential control.

July 17

New York Times, Democrats to Press Supreme Court Ethics Rules Over G.O.P. Opposition, Carl Hulse, July 17, 2023. The Senate Judiciary Committee is slated to approve new disclosure requirements, although the legislation is unlikely to advance.

Senate Democrats plan to push ahead this week with legislation imposing new ethics rules on the Supreme Court in the wake of disclosures about the justices’ travel and outside activities, despite blanket opposition by Republicans who claim the effort is intended to undermine the high court.

The Judiciary Committee is scheduled on Thursday to consider legislation by Senator Sheldon Whitehouse, Democrat of Rhode Island, that would require the Supreme Court to establish a new code of conduct for justices, set firmer ground rules for recusal from cases, create a new investigatory board and promote transparency about ties with those before the court.

Senate Republicans have made it clear they won’t support the legislation, and it has no chance in the G.O.P.-controlled House. But Mr. Whitehouse said he saw the fight over the measure as just the first step, after a string of revelations about undisclosed luxury travel, relationships with affluent Americans and speaking engagements tied to book sales, as well as the shocking leak last year of the court’s decision overturning precedent on abortion rights.

“You have to start somewhere,” said Mr. Whitehouse. He added, “The more information that comes out about the mischief going on at the Supreme Court, the more inevitable it becomes that they come around to agreeing we have to do something. We’re just at the beginning.”

Republicans say the Democratic focus on the court is meant mainly to undercut its legitimacy in retaliation for rulings on abortion, affirmative action and federal regulatory power that Democrats disagree with, but some concede that the justices have exhibited some lapses and that Chief Justice John G. Roberts Jr. should take steps to address those issues.

“There are actually ethics questions legitimately raised that the court needs to to deal with,” Senator Lindsey Graham of South Carolina, the top Republican on the Judiciary Committee, said. “I think Justice Roberts needs to find a way to assure the public about the integrity of the court. I think he’s better able to do that than Congress.”

July 14

New York Times, Opinion: A Federal Judge Asks: Does the Supreme Court Realize How Bad It Smells, Michael Ponsor (Judge Ponsor, right, is a senior judge on the U.S. District Court for the District of Massachusetts), July 14, 2023. What has gone wrong with the Supreme Court’s sense of smell?

I joined the federal bench in 1984, some years before any of the justices currently on the Supreme Court. Throughout my career, I have been bound and guided by a written code of conduct, backed by a committee of colleagues I can call on for advice. In fact, I checked with a member of that committee before writing this essay.

A few times in my nearly 40 years on the bench, complaints have been filed against me. This is not uncommon for a federal judge. So far, none have been found to have merit, but all of these complaints have been processed with respect, and I have paid close attention to them.

The Supreme Court has avoided imposing a formal ethical apparatus on itself like the one that applies to all other federal judges. I understand the general concern, in part. A complaint mechanism could become a political tool to paralyze the court or a playground for gadflies. However, a skillfully drafted code could overcome this problem. Even a nonenforceable code that the justices formally pledged to respect would be an improvement on the current void.

Reasonable people may disagree on this. The more important, uncontroversial point is that if there will not be formal ethical constraints on our Supreme Court — or even if there will be — its justices must have functioning noses. They must keep themselves far from any conduct with a dubious aroma, even if it may not breach a formal rule.

The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

Although the exact numbers fluctuate because of vacancies, the core of our federal judiciary comprises roughly 540 magistrate judges, 670 district judges, 180 appeals court judges and nine Supreme Court justices — fewer than 1,500 men and women in a country of more than 330 million people and 3.8 million square miles. Much depends on this small cohort’s acute sense of smell, its instinctive, uncompromising integrity and its appearance of integrity. If reports are true, some of our justices are, sadly, letting us down.

To me, this feels personal. For the country, it feels ominous. What in the world has happened to the Supreme Court’s nose?

July 12

Associated Press via New York Post, Investigation: SCOTUS judges likely would break ethics rules that cover officials in other branches of gov, Staff Report, July 12, 2023. The Associated Press submitted over 100 public records requests to public schools and institutions that the Supreme Court has visited over the years.

In a monthslong inquiry, which included reviewing tens of thousands of pages of documents from more than 100 public records requests, the Associated Press has examined what happens behind the scenes when Supreme Court justices travel to colleges and universities for lectures and other events.

The AP learned the identities of donors and politicians invited to events with justices, details about the perks that have accompanied the school visits and information about how school trips have helped advance books sales.

Some of the key takeaways:

Book sales

The documents reveal how university visits are a convenient way for justices to sell their own books. That’s especially true in the case of Justice Sonia Sotomayor, above, a prolific author who has kept the court’s most active travel schedule over the past decade, according to the records reviewed by the AP.

Emails and other documents show that Supreme Court staff members have been directly engaged in facilitating book sales by asking schools how many copies they want to buy and by helping to arrange the purchase of mass quantities.

At a 2019 event jointly hosted by the Multnomah County Library in Oregon and Portland Community College, a Sotomayor aide told organizers that “250 books is definitely not enough” for a program with an expected 1,000 guests in which people would be required to have a copy to meet the justice for a signing after the event.

Michigan State University purchased 11,000 copies to be distributed to incoming first-year students. When Clemson University in South Carolina worried that 60 copies might be too many for Sotomayor to sign, a staffer reassured the school that “most institutions order in the ranges of 400 and up.”

And before a scheduled visit to the law school at the University of California, Davis, for the 2018 commencement, the court staff pitched the school on signed copies of her books in connection with the event.

In a statement, a Supreme Court spokesperson said that staff members work to follow judicial ethics guidance and that “at no time have attendees been required to buy a book in order to attend an event.”

“Schools have occasionally invited Justice Sotomayor to take part in a program in which they select a book for an entire school or a freshman class, and the Justice gives a book talk,” the statement said. “When she is invited to participate in a book program, Chambers staff recommends the number of books based on the size of the audience so as not to disappoint attendees who may anticipate books being available at an event, and they will put colleges or universities in touch with the Justice’s publisher when asked to do so.”

A lure for money

Supreme Court justices insist that they cannot and do not participate in fundraising events. But the emails obtained by the AP show that the court’s definition of a fundraiser — an event that raises more than it costs or where guests are asked for contributions — excludes much of the work that typically goes into persuading a wealthy donor to cut a check.

That’s given schools wide latitude to court rich patrons.

For instance, ahead of a 2017 event with Justice Clarence Thomas, right, officials at McLennan Community College in Texas worked with the prominent conservative lawyer Ken Starr and his wife, Alice, to craft a guest list designed to reward school patrons and incentivize future contributions. In an interview, Starr’s widow called it “friendraising.”

In an email planning the event, the executive director of the college’s foundation wrote that she had thoughts about whom to invite “mainly because they are wealthy conservative Catholics who would align with Clarence Thomas and who have not previously given.”

Thomas isn’t the only one whose status as a justice has been leveraged by schools eager to capitalize with donors. Before Justice Elena Kagan, below left, visited the University of Colorado’s law school, one official suggested a “larger donor to staff ratio” for a 2019 dinner with her, emails show. Another event organizer said the organizer was “open to suggestions about which VIP donors to cultivate relationships with.” A school spokesperson said the attendees weren’t asked for any donations connected to the event.

One official said it was hoped the events, which included donors, would “ultimately generate resources” for the university’s Humanities Advancement Board, which played a lead organizing role. As university officials devised a guest list, an alumni relations official wrote: “When you say $1M donors, please be sure to include our corporate donors at that level, too.”

In a statement, a court spokesperson said it “routinely asks event organizers to confirm that an event at which a Justice will speak is not a fundraiser, and it provides a definition of ‘fundraiser’ in order to avoid misunderstandings.” The spokesperson said justices have occasionally declined to attend events even after being told expressly that they were not fundraisers.

Political commingling

Visits to universities are promoted as academic in nature, but they also have facilitated encounters between justices and elected officials.

Months after he was seated on the Supreme Court, Justice Neil Gorsuch, left, attended an event at the University of Kentucky with then-Senate Minority Leader Mitch McConnell, right, hosted by a center to study the judiciary named after one of McConnell’s closest friends, a former federal judge.

In 2020, after teaching a weeklong course at the University of Florida’s law school, Thomas extended his stay in the state to attend a gathering of the regional branch of the Federalist Society, where he was introduced with effusive praise by Gov. Ron DeSantis, with whom he also had a private dinner.

Thomas also attended a private dinner during a visit to the University of Texas at Tyler that was sponsored by a group of donors to then-Rep. Louie Gohmert. Six years later, Gohmert would spearhead a lawsuit that sought to empower Vice President Mike Pence to overturn the outcome of the 2020 presidential election that Donald Trump lost.

A court spokesperson said: “Justices exercise caution in attending events that might be described as political in nature, following guidance in the Code of Conduct which cautions judges against engaging in political activity. Merely attending an event where an elected official might also be in attendance — such as several of the events described in your email — does not necessarily render the event impermissibly political in nature.”

No ethics code

Some of the conduct revealed by the AP likely would run afoul of ethics rules that cover officials in other branches of government as well as lower federal court judges.

July 10

New York Times, Opinion: Look at What John Roberts and His Court Have Wrought Over 18 Years, Linda Greenhouse (shown at right on the cover of her memoir), July 10, 2023 (print ed.). Linda Greenhouse, the recipient 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.

The end of a Supreme Court term always sparks a lively conversation about how to characterize what just happened, and this year was no exception. In refusing to weaken the Voting Rights Act any further, did the court show itself to be a bit less dogmatically conservative than the year before? Did the 6-to-3 rejection of a dangerous theory that would have stripped state courts of the authority to review election laws show that the justices could still build bridges across their ideological divide?

Yes, democracy survived, and that’s a good thing. But to settle on that theme is to miss the point of a term that was in many respects the capstone of the 18-year tenure of Chief Justice John Roberts, left. To understand today’s Supreme Court, to see it whole, demands a longer timeline. To show why, I offer a thought experiment. Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.

July 9

New York Times, Clarence Thomas Entered an Elite Club, and Opened a Door to the Supreme Court, Abbie VanSickle and Steve Eder, July 9, 2023. The Horatio Alger Association brought the justice access to wealthy members and unreported V.I.P. treatment. He, in turn, offered another kind of access.

On Oct. 15, 1991, Clarence Thomas secured his seat on the Supreme Court, a narrow victory after a bruising confirmation fight that left him isolated and disillusioned.

Within months, the new justice enjoyed a far-warmer acceptance to a second exclusive club: the Horatio Alger Association of Distinguished Americans, named for the Gilded Age author whose rags-to-riches novels represented an aspirational version of Justice Thomas’s own bootstraps origin story.

If Justice Thomas’s life had unfolded as he had envisioned, his Horatio Alger induction might have been a celebration of his triumphs as a prosperous lawyer instead of a judge. But as he tells it, after graduating from Yale Law School, he was turned down by a series of top law firms, rejections he attributes to a perception that he was a token beneficiary of affirmative action. So began his grudging path to a judicial career that brought him great prestige but only modest material wealth after decades of financial struggle.

When he joined the Horatio Alger Association, Justice Thomas entered a world whose defining ethos of meritocratic success — that anyone can achieve the American dream with hard work, pluck and a little luck — was the embodiment of his own life philosophy, and a foundation of his jurisprudence. As he argued from the bench in his concurrence to the recent decision striking down affirmative action, the court should be “focusing on individuals as individuals,” rather than on the view that Americans are “all inexorably trapped in a fundamentally racist society.”

At Horatio Alger, he moved into the inner circle, a cluster of extraordinarily wealthy, largely conservative members who lionized him and all that he had achieved. While he has never held an official leadership position, in some ways he has become the association’s leading light. He has granted it unusual access to the Supreme Court, where every year he presides over the group’s signature event: a ceremony in the courtroom at which he places Horatio Alger medals around the necks of new lifetime members. One entrepreneur called it “the closest thing to being knighted in the United States.” At the same time, Justice Thomas has served as the group’s best messenger, meeting with and mentoring the recipients of millions of dollars a year in Horatio Alger college scholarships, many of whom come from backgrounds that mirror his own.

Washington Post, Opinion: A U.S. district judge calls the Supreme Court’s bluff on guns, Ruth Marcus, right, July 9, 2023 (print ed.). Lower-court judges are bound to follow the law as decreed by the Supreme Court. They aren’t bound to like it. And so, lost amid the end-of-term flurry at the high court, came another remarkable ruling by U.S. District Judge Carlton W. Reeves of Mississippi.

Reeves declared that the court’s interpretation of the Second Amendment compels the unfortunate conclusion that laws prohibiting felons from having guns violate the Second Amendment. He took a swipe at the conservative justices’ zealous protection of gun rights even as they diminish other constitutional guarantees. And, for good measure, he trashed originalism, now “the dominant mode of constitutional interpretation” of the Supreme Court’s conservative majority. “This Court is not so sure it should be,” Reeves ventured, but the more he wrote about originalism, the more dubious he sounded about it.

You might recall Reeves from his 2020 case pleading with the Supreme Court to fix the injustices inflicted by its invented doctrine of “qualified immunity” for police and other law enforcement officials who engage in egregious, and unconstitutional, behavior.

You might recall him from an earlier phase of the case just decided, when he asked the parties whether he should appoint a historian to serve as expert witness, given the high court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen finding that the constitutionality of gun laws depends on whether they are consistent with the “history and tradition” of restrictions in place at the time the Constitution was written.

“This Court is not a trained historian,” observed Reeves, a Barack Obama appointee. “The Justices of the Supreme Court, as distinguished as they may be, are not trained historians. … And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.”

Reeves didn’t end up appointing an outside historian — and, having played that court-assigned role, came up with a conclusion that might discomfit his superiors at the high court. His 77-page opinion, declaring that the long-standing federal ban on felons’ possessing firearms could not be constitutionally applied to Jessie Bullock, is just the latest evidence of the chaos and mischief unleashed by Bruen.

New York Times, Opinion: Who Truly Threatens the Church? David French, July 9, 2023. At the exact time when religious liberty is enjoying a historic winning streak at the Supreme Court, a cohort of Christians has increasingly decided that liberty isn’t enough. To restore the culture and protect our children, it’s necessary to exercise power to shape our national environment.

And so the conservative movement is changing. When I was a younger lawyer, conservatives fought speech codes that often inhibited religious and conservative discourse on campus. Now, red state legislatures are writing their own speech codes, hoping to limit discussion of the ideas they disfavor. When I was starting my career, my conservative colleagues and I rolled our eyes at the right-wing book purges of old, when angry parents tried to yank “dangerous” books off school library shelves. Well, now the purges are back, as parents are squaring off in school districts across the nation, arguing over the words children should be allowed to read.

Years ago, I laughed at claims that Christian conservatives were dominionists in disguise, that we didn’t just want religious freedom, we wanted religious authority. Yet now, such claims are hardly laughable. Arguments for a “Christian nationalism” are increasingly prominent, with factions ranging from Catholic integralists to reformed Protestants to prophetic Pentecostals all seeking a new American social compact, one that explicitly puts Christians in charge.

The motivating force behind this transformation is a powerful sense of threat — the idea that the left is “coming after” you and your family. This mind-set sees the Christian use of power as inherently protective, and the desire to censor as an attempt to save children from dangerous ideas. The threat to the goodness of the church and the virtue of its members, in other words, comes primarily from outside its walls, from a culture and a world that is seen as worse in virtually every way.

July 8

World Crisis Radio, Weekly Strategic Overview: Supreme Court is not a court, but a modern version of the Committee of Public Safety (1792-1795) in the French Revolution! Webster G. Tarpley, right, author and historian, July 8, 2023. Committee boss Robespierre was called The Incorruptible, while many of today’s justices are thoroughly corrupt; Markey bill for four new justices plus a strict ethics code are just the beginning of needed measures; 2024 Democratic campaigns must demand rollback of unpopular decisions on abortion, gun safety, affirmative action, and voting rights; Time for minority to break Roberts lockstep; The absurdities of the website designer case; In outrageous overreach, another MAGA federal judge bans administration contact with social media firms;

NATO summit starts next Tuesday July 11, and should invite Ukraine to join once fighting stops, while redoubling military support; Richard Haass and pro-appeasement elements from Council on Foreign Relations–the Wall Street State Department–held April secret meeting with Russian Foreign Minister Lavrov, violating US pledge not to discuss Ukraine without Ukrainians; Meeting also indicates pre-Prigozhin Russian weakness; CFR cannot comprehend how war could end through internal Russian political collapse, despite examples of World War I in February1917 and Afghanistan 1989;

RFK Jr.’s New Age campaign evokes myths of pre-1963 Golden Age, The Fall as mystical loss, and the corrupt fallen world; Paradise was Camelot, the Fall was JFK’s assassination, and the fallen world is ours of today; RFK’s campaign offers the Messianic vehicle for Paradise Regained, but should he fail, the last battle (aka Armageddon) looms; Close parallels with MAGA belief structure;

RFK’s radical subjectivism poses question of whether presidential choice depends on competence to govern, or whether a candidate’s role is to minister to the emotional needs of the base, confirming their frustrated beliefs about history, science, etc.; RFK not a Democrat.

New York Times, He Tried to Overturn Affirmative Action for Years, and Won. He’s Not Done, Lulu Garcia-Navarro, July 9, 2023 (print ed.). Edward Blum’s victory at the Supreme Court is the culmination of a long fight to take race out of college admissions. Is the workplace next?

Edward Blum has been working toward the end of race-based admissions in higher education for years. He first brought the issue of affirmative action before the Supreme Court in 2012, with Fisher v. University of Texas — a case he ended up losing. Since then, the 71-year-old legal activist has founded a group called Students for Fair Admissions, which just won at the Supreme Court against Harvard and the University of North Carolina, in a decision that effectively ended race-based affirmative action policies in American college admissions.

Now, with a legal victory in hand, Mr. Blum is thinking about what’s next in his work to remove the consideration of race from other parts of American life and law. In a wide-ranging discussion, he told me about how he’ll be watching to make sure elite institutions of higher learning abide by the court’s recent decision, and why he thinks corporate America will be facing scrutiny next. This interview has been condensed and edited for length and clarity.

New York Times, He Tried to Overturn Affirmative Action for Years, and Won. He’s Not Done, Lulu Garcia-Navarro, July 9, 2023 (print ed.). Edward Blum’s victory at the Supreme Court is the culmination of a long fight to take race out of college admissions. Is the workplace next?

Edward Blum has been working toward the end of race-based admissions in higher education for years. He first brought the issue of affirmative action before the Supreme Court in 2012, with Fisher v. University of Texas — a case he ended up losing. Since then, the 71-year-old legal activist has founded a group called Students for Fair Admissions, which just won at the Supreme Court against Harvard and the University of North Carolina, in a decision that effectively ended race-based affirmative action policies in American college admissions.

Now, with a legal victory in hand, Mr. Blum is thinking about what’s next in his work to remove the consideration of race from other parts of American life and law. In a wide-ranging discussion, he told me about how he’ll be watching to make sure elite institutions of higher learning abide by the court’s recent decision, and why he thinks corporate America will be facing scrutiny next. This interview has been condensed and edited for length and clarity.

Washington Post, Opinion: A U.S. district judge calls the Supreme Court’s bluff on guns, Ruth Marcus, July 9, 2023 (print ed.). Lower-court judges are bound to follow the law as decreed by the Supreme Court. They aren’t bound to like it. And so, lost amid the end-of-term flurry at the high court, came another remarkable ruling by U.S. District Judge Carlton W. Reeves of Mississippi.

Reeves declared that the court’s interpretation of the Second Amendment compels the unfortunate conclusion that laws prohibiting felons from having guns violate the Second Amendment. He took a swipe at the conservative justices’ zealous protection of gun rights even as they diminish other constitutional guarantees. And, for good measure, he trashed originalism, now “the dominant mode of constitutional interpretation” of the Supreme Court’s conservative majority. “This Court is not so sure it should be,” Reeves ventured, but the more he wrote about originalism, the more dubious he sounded about it.

You might recall Reeves from his 2020 case pleading with the Supreme Court to fix the injustices inflicted by its invented doctrine of “qualified immunity” for police and other law enforcement officials who engage in egregious, and unconstitutional, behavior.

You might recall him from an earlier phase of the case just decided, when he asked the parties whether he should appoint a historian to serve as expert witness, given the high court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen finding that the constitutionality of gun laws depends on whether they are consistent with the “history and tradition” of restrictions in place at the time the Constitution was written.

“This Court is not a trained historian,” observed Reeves, a Barack Obama appointee. “The Justices of the Supreme Court, as distinguished as they may be, are not trained historians. … And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.”

Reeves didn’t end up appointing an outside historian — and, having played that court-assigned role, came up with a conclusion that might discomfit his superiors at the high court. His 77-page opinion, declaring that the long-standing federal ban on felons’ possessing firearms could not be constitutionally applied to Jessie Bullock, is just the latest evidence of the chaos and mischief unleashed by Bruen.

New York Times, Opinion: Who Truly Threatens the Church? David French, July 9, 2023. At the exact time when religious liberty is enjoying a historic winning streak at the Supreme Court, a cohort of Christians has increasingly decided that liberty isn’t enough. To restore the culture and protect our children, it’s necessary to exercise power to shape our national environment.

And so the conservative movement is changing. When I was a younger lawyer, conservatives fought speech codes that often inhibited religious and conservative discourse on campus. Now, red state legislatures are writing their own speech codes, hoping to limit discussion of the ideas they disfavor. When I was starting my career, my conservative colleagues and I rolled our eyes at the right-wing book purges of old, when angry parents tried to yank “dangerous” books off school library shelves. Well, now the purges are back, as parents are squaring off in school districts across the nation, arguing over the words children should be allowed to read.

Years ago, I laughed at claims that Christian conservatives were dominionists in disguise, that we didn’t just want religious freedom, we wanted religious authority. Yet now, such claims are hardly laughable. Arguments for a “Christian nationalism” are increasingly prominent, with factions ranging from Catholic integralists to reformed Protestants to prophetic Pentecostals all seeking a new American social compact, one that explicitly puts Christians in charge.

The motivating force behind this transformation is a powerful sense of threat — the idea that the left is “coming after” you and your family. This mind-set sees the Christian use of power as inherently protective, and the desire to censor as an attempt to save children from dangerous ideas. The threat to the goodness of the church and the virtue of its members, in other words, comes primarily from outside its walls, from a culture and a world that is seen as worse in virtually every way.

Washington Post, More than 100 migrants died from heat near U.S.-Mexico border this year, Frances Vinall, July 8, 2023 (print ed.). More than 100 migrants have died from heat this year along the U.S.-Mexico border as the Southwest continues to swelter through record-breaking heat.

There were 13 deaths and 226 rescues for dehydration and other heat-related causes last week alone, U.S. Border Patrol chief Jason Owens said Wednesday on Twitter.

“Do not endanger your lives by embarking on the hazardous journey to the United States,” U.S. Customs and Border Protection said in a tweet, noting that the rising temperatures along the southwest border “make the dangerous trek to cross into the U.S. unlawfully even more treacherous.”

Last week’s fatalities follow 103 deaths and 5,091 rescues through late June.

The heat wave threatening Texas and the country’s Southwest is among several worldwide that resulted in the hottest June ever charted globally and Earth’s hottest day on record on July 4.

July 7

New York Times, With High Court Under Fire, a Top Federal Judge Suggests More Sunlight, Carl Hulse, July 7, 2023 (print ed.). Judge Amul Thapar, the author of a new book on Justice Clarence Thomas, defends him but says courts should foster greater public understanding of how they work.

Judge Amul Thapar thinks America is misjudging its judges — one in particular.

A member of the U.S. Court of Appeals for the Sixth Circuit, Judge Thapar has written a new book extolling the judicial approach of Justice Clarence Thomas at a moment when the Supreme Court and Justice Thomas himself are under fire for both their jurisprudence and lax adherence to ethical standards.

The intense scrutiny on the high court has led to a sharp drop in public approval. It comes as a string of high-profile, politically charged rulings on race, gay rights and student loans has contributed to a rising public view that federal judges are politicians in robes who rule based on their personal ideology and are swayed by friends and benefactors.

As an elite member of the judiciary himself, Judge Thapar says such skepticism about the courts could be dispelled, at least somewhat, by more transparency — not necessarily about finances and potential conflicts, but about how they reach their decisions.

“I think judges and others should be more public about our process because I think if people saw what goes on on the inside, they would have so much more faith in the institution,” Judge Thapar, a Trump appointee, said in an interview. “I just think it would help to turn down the volume on everything.”

July 5

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, Biden faces renewed pressure to embrace Supreme Court overhaul, Tyler Pager, July 5, 2023 (print ed.). Bombshell decisions by the court have intensified liberal calls for President Biden to more forcefully embrace far-reaching changes to the high court as he heads toward 2024. So far he’s resisting.

As Democrats reel from another painful set of defeats at the Supreme Court in recent weeks, President Biden is facing renewed pressure from a range of elements in his party, from liberal lawmakers to abortion rights activists, to more forcefully embrace far-reaching changes to the high court.

Biden has harshly criticized the Supreme Court’s sharp pivot to the right, but he has stayed away from endorsing any of the broad array of reforms — including court expansion, term limits and mandatory retirements — that are being pushed by the left flank of his party and increasingly backed by core parts of his base.

Over the last week, the Supreme Court rejected the use of affirmative action in college admissions, struck down Biden’s plan to forgive student loan debt and sided with a graphic artist who does not want to create wedding websites for gay couples. Those blows to the liberal agenda come almost exactly a year after the court overturned a half-century of precedent by rejecting the constitutional right to abortion.

After the court last Friday blocked Biden’s plan to forgive student loan debt, Reps. Don Beyer (D-Va.) and Ro Khanna (D-Calif.) reintroduced legislation to institute 18-year term limits for Supreme Court justices. The long-shot legislation would only apply to future justices and would allow them to continue serving on lower courts after their term was up. Supreme Court justices, like other federal judges, are currently appointed for life.

Beyer, Khanna and other Democrats argue that the mounting number of what they call radical rulings by the court, along with reports that some justices have accepted lavish trips from wealthy figures, have created a crisis of legitimacy.

“Recent partisan decisions by the Supreme Court that destroyed historic protections for reproductive rights, voting rights and more have undermined public trust in the court — even as inappropriate financial relationships between justices and conservative donors raised new questions about its integrity,” Beyer said in a statement.

July 1

Washington Post, Supreme Court rejects Biden student loan forgiveness plan, Robert Barnes and Danielle Douglas-Gabriel, July 1, 2023 (print ed.). The Supreme Court on Friday said President Biden does not have the authority for his nearly half-trillion dollar plan to forgive student loan debt, the latest blow from a Supreme Court that has been dismissive of this administration’s bold claims of power.

The vote was 6 to 3 along ideological lines, with Chief Justice John G. Roberts Jr., below left, writing for the court’s dominant conservatives.

Biden contended his administration had the authority to forgive student loan debt under the Higher Education Relief Opportunities for Students Act of 2003. The law allows the education secretary to waive or modify loan provisions in response to a national emergency, such as the coronavirus pandemic.

But the challenge brought together controversial issues: an ambitious program aimed at fulfilling a campaign promise for Biden’s political base; heightened suspicion by the Supreme Court’s conservative supermajority about the ability of federal agencies to act without specific congressional authorization; and the power of Republican-led states to use the judiciary to stop a president’s priorities before they take effect.

Live updates: Read the latest news and reactions to Friday's Supreme Court decisions

Biden and Education Secretary Miguel Cardona proposed a plan that would eliminate up to $10,000 of student debt for borrowers earning up to $125,000 annually, or up to $250,000 for married couples. Those who received Pell Grants, a form of financial aid for low- and middle-income students, would be eligible for an additional $10,000 in forgiveness. About 20 million borrowers could see their balances wiped clean.

U.S. Solicitor General Elizabeth B. Prelogar, who defended the program at oral arguments, said Cardona’s actions are not only justified by the law, but they are also exactly what Congress had in mind when it passed the Heroes Act in the wake of the 9/11 terrorist attacks.

But the Supreme Court majority — Roberts and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — disagreed.

“The Secretary asserts that the HEROES Act grants him the authority to cancel $430 billion of student loan principal. It does not,” Roberts wrote. “We hold today that the Act allows the Secretary to ‘waive or modify’ existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up.”

New York Times, Affirmative Action Ruling May Upend Hiring Policies, Too, Noam Scheiber, July 1, 2023 (print ed.). The Supreme Court’s decision on college admissions could lead companies to alter recruitment and promotion practices to pre-empt legal challenges.

As a legal matter, the Supreme Court’s rejection of race-conscious admissions in higher education does not in itself impede employers from pursuing diversity in the workplace.

That, at least, is the conclusion of lawyers, diversity experts and political activists across the spectrum — from conservatives who say robust affirmative action programs are already illegal to liberals who argue that they are on firm legal ground.

But many experts argue that as a practical matter, the ruling will discourage corporations from putting in place ambitious diversity policies in hiring and promotion — or prompt them to rein in existing policies — by encouraging lawsuits under the existing legal standard.

After the decision on Thursday affecting college admissions, law firms encouraged companies to review their diversity policies.

“I do worry about corporate counsels who see their main job as keeping organizations from getting sued — I do worry about hyper-compliance,” said Alvin B. Tillery Jr., director of the Center for the Study of Diversity and Democracy at Northwestern University, who advises employers on diversity policies.

Programs to foster the hiring and promotion of African Americans and other minority workers have been prominent in corporate America in recent years, especially in the reckoning over race after the 2020 murder of George Floyd by a Minneapolis police officer.

Even before the ruling in the college cases, corporations were feeling legal pressure over their diversity efforts. Over the past two years, a lawyer representing a free-market group has sent letters to American Airlines, McDonald’s and many other corporations demanding that they undo hiring policies that the group says are illegal.

The free-market group, the National Center for Public Policy Research, acknowledged that the outcome on Thursday did not bear directly on its fight against affirmative-action in corporate America. “Today’s decision is not relevant; it dealt with a special carve-out for education,” said Scott Shepard, a fellow at the center.

Mr. Shepard claimed victory nonetheless, arguing that the ruling would help deter employers who might be tempted overstep the law. “It couldn’t be clearer after the decision that fudging it at the edges” is not allowed, he said.

World Crisis Radio, Weekly Strategic Overview: “Not a normal court!” Corrupt and hated Supremes declare total class war on US Constitution and American people! Webster G. Tarpley, right, author and historian, July 1, 2023 (155:55 mins.). Outrageous rulings against abortion rights, gun safety, affirmative action, and student loan debt relief foreshadow extinction of MAGA fanatics in 2024!

Biden suggests adversity as admissions enhancement criterion less likely to be attacked by plutocratic Supremes, hinting at greater role for socioeconomic class;
Defense of crushing debt burden on Millennials and Gen Z is found nowhere in Constitution, and violates General Welfare clause and Natural Law generally; Action under Heroes’ Act struck down, but Higher Education Act or other statues may permit another try for debt relief in near future;

”Bidenomics” is shorthand for successful Hamiltonian dirigism and industrial policy to replace failed and discredited free trade, free market trickle-down economics and neo-liberalism; US has best GDP growth, lowest inflation, and most robust job creation in G-7;

• But in RFK’s grotesque world, Biden is blamed for high court’s student debt fetish because he has not neutralized MAGAts! In News Nation town hall, RFK condemns US as provocateur leaving no alternative but invasion of Ukraine for peace-loving Putin, who supposedly acts in good faith; RFK breaks own Carteresque promise to always tell the truth; demands completion of Trump’s Wall and sealing of border, with immigration reform unattainable; Gun control and ban on AR-15s are impossible without consensus-also a Utopia; He won’t pledge to back Dem nominee and won’t criticize Trump; Obscurantist on public health, but wants legalization of psychedelics; RFK unworthy of debate and unfit for presidency;
• Russia enters new Smuta, the Time of Troubles c. 1590-1620 when at least one third of population perished; Reports allege preparations for Putin assassination during motorcade crossing of Moskva River bridge en route to suburban palace;
• Top Russian generals Surovikin and Gerassimov not seen in public, with Prigozhin nowhere to be found; Speculation about Putin’s doubles; US Army ATACMs ballistic missiles likely to be delivered to Ukraine;
• Reasonable people must stop misnomering and euphemizing fascists and fanatics as ”conservatives”; Conservatives value precedent, tradition, custom, norms, and protocols, but today’s Supremes hold these in contempt; A distant sample of real jurisprudence: If Goverment policy on vital questions affecting the whole people is irrevocably fixed by Supreme Court decisions made in ordinary litigation between parties in personal actions, the people will cease to be their own rulers, having resigned their Government to that tribunal.-Abraham Lincoln, First Inaugural, March 4, 1861 in Washington, DC.

Washington Post, Supreme Court protects web designer who won’t do gay wedding websites, Robert Barnes, July 1, 2023 (print ed.). The Supreme Court’s conservative majority ruled in favor of an evangelical Christian graphic artist from Colorado who does not want to create wedding websites for same-sex couples, despite the state’s protective anti-discrimination law.

The vote split along ideological lines 6 to 3, with the liberals in dissent.

It was the court’s latest examination of the clash between laws requiring equal treatment for the LGBTQ community and those who say their religious beliefs lead them to regard same-sex marriages as “false.”

Justice Neil M. Gorsuch, writing for the majority, said the First Amendment protects designer Lorie Smith from creating speech she does not believe.

“The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” Gorsuch wrote, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Brett M. Kavanaugh and Amy Coney Barrett. “Colorado seeks to deny that promise.”

Justice Sonia Sotomayor authored the dissent, joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson. “Today the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” she wrote. “Today is a sad day in American constitutional law and in the lives of LGBT people.”

For the second day in a row, Sotomayor read parts of her dissent from the bench to show the depth of her disagreement with the majority. On Thursday, she was dissenting from a historic decision striking down race-based affirmative action in college admissions.

Live updates: Read the latest on Supreme Court decisions today

Friday’s case, 303 Creative LLC v. Elenis, comes five years after the Supreme Court’s narrow 2018 in favor of Jack Phillips, a Colorado baker who refused to create a wedding cake for a gay couple. In that decision, the justices avoided declaring a clear winner in the cultural conflict between LGBTQ rights advocates who seek the protections of public accommodations laws and those who say their religious beliefs forbid countenancing same-sex marriage.

Smith’s office is just five miles from Phillips’s Masterpiece Cakeshop. She contended that the same Colorado law Phillips challenged, which forbids discrimination on the basis of sexual orientation, also violates her deeply held religious views and free-speech rights.

Smith wants to expand her business to create wedding websites — but only to tell the stories of brides and grooms “through God’s lens.” And she wants to be able to tell same-sex couples on her 303 Creative LLC website that she will not create such platforms for them.

“Colorado is censoring and compelling my speech and really forcing me to pour my creativity into creating messages that violate my convictions,” Smith said in an interview before her case was argued in December. “There are some messages I cannot create.”

New York Times, Affirmative Action Ruling May Upend Hiring Policies, Too, Noam Scheiber, July 1, 2023 (print ed.). The Supreme Court’s decision on college admissions could lead companies to alter recruitment and promotion practices to pre-empt legal challenges.

As a legal matter, the Supreme Court’s rejection of race-conscious admissions in higher education does not in itself impede employers from pursuing diversity in the workplace.

That, at least, is the conclusion of lawyers, diversity experts and political activists across the spectrum — from conservatives who say robust affirmative action programs are already illegal to liberals who argue that they are on firm legal ground.

But many experts argue that as a practical matter, the ruling will discourage corporations from putting in place ambitious diversity policies in hiring and promotion — or prompt them to rein in existing policies — by encouraging lawsuits under the existing legal standard.

After the decision on Thursday affecting college admissions, law firms encouraged companies to review their diversity policies.

“I do worry about corporate counsels who see their main job as keeping organizations from getting sued — I do worry about hyper-compliance,” said Alvin B. Tillery Jr., director of the Center for the Study of Diversity and Democracy at Northwestern University, who advises employers on diversity policies.

Programs to foster the hiring and promotion of African Americans and other minority workers have been prominent in corporate America in recent years, especially in the reckoning over race after the 2020 murder of George Floyd by a Minneapolis police officer.

Even before the ruling in the college cases, corporations were feeling legal pressure over their diversity efforts. Over the past two years, a lawyer representing a free-market group has sent letters to American Airlines, McDonald’s and many other corporations demanding that they undo hiring policies that the group says are illegal.

The free-market group, the National Center for Public Policy Research, acknowledged that the outcome on Thursday did not bear directly on its fight against affirmative-action in corporate America. “Today’s decision is not relevant; it dealt with a special carve-out for education,” said Scott Shepard, a fellow at the center.

Mr. Shepard claimed victory nonetheless, arguing that the ruling would help deter employers who might be tempted overstep the law. “It couldn’t be clearer after the decision that fudging it at the edges” is not allowed, he said.

New York Times, See how the Supreme Court ruled on major cases from this term, Adam Liptak and Eli Murray, Updated July 1, 2023. The Supreme Court term that ended Friday concluded with a series of muscular 6-to-3 decisions divided along partisan lines, with the court's six Republican appointees in the majority.

Those rulings, on affirmative action, student loans and gay rights, were reminiscent of the transformative conservative decisions issued last June on abortion, guns, religion and climate change. But the latest term as a whole included some notable decisions in which the court’s three Democratic appointees were in the majority, including ones on the Voting Rights Act, the role state legislatures play in federal elections and Native American adoptions.

According to a survey conducted in April by researchers at Harvard, Stanford and the University of Texas, the public is often — but hardly always — divided along partisan lines on how the court should rule in the term’s major cases.

But after a significantly warmer June, and with climate change driving temperatures ever higher, this longstanding patchwork of medical and homemade remedies is becoming increasingly crucial for the preservation of both livelihoods and summer traditions.

New York Times, The ‘Unseen’ Students in the Affirmative Action Debate, Sarah Mervosh and Troy Closson, July 1, 2023. Race-conscious admissions helped only a tiny fraction of Black and Hispanic students. The policy could not address the many obstacles to a degree.

For as long as she remembers, Dolly Ramos hoped to have “the college experience,” she said, and one day become a nurse. But her biggest obstacle wasn’t competing for a spot at the school of her choice — it was attending and affording college at all.

The Supreme Court’s decision striking down affirmative action will very likely have powerful consequences for elite college admissions, potentially limiting the pool of Black and Hispanic students at the most selective universities and affecting the diversity of future leaders in business, government and beyond.

But the effect of race-conscious admissions was always limited to a relatively small number of students. For the vast majority, these schools are not an option — academically or financially.

Many head straight into the work force after high school or attend less selective universities that do not weigh race and ethnicity in admissions. At least a third of all undergraduate students — including half of Hispanic undergraduates — attend community colleges, which typically allow open enrollment.

“Somewhere it switched from ‘I want to be in school’ to ‘I just want to survive,’” said Ms. Ramos, 25, who recently finished her nursing degree. To get there, she cobbled together credits from multiple colleges in New York State, and at times lived in a youth shelter and slept on the floor of a professor’s office.

At Memorial Pathway Academy, a high school for at-risk students and new immigrants in Garland, Texas, more than 80 percent of students get a job after graduation. Nationally, nearly 40 percent of high school graduates do not immediately enroll in college.

“This is the unseen group,” said Josh Tovar, the principal. “Everyone sees the kid that is No. 1 ranked with 110 G.P.A. going to M.I.T. No one sees my boy that doesn’t have parents — that lives with Grandma, that came to me at 17, with five credits, and graduates.”

Fewer than 200 selective universities are thought to practice race-conscious admissions, conferring degrees on about 10,000 to 15,000 students each year who might not otherwise have been accepted, according to a rough estimate by Sean Reardon, a sociologist at Stanford University. That represents about 2 percent of all Black, Hispanic or Native American students in four-year colleges.

The affirmative action decision could still have broader ripple effects. Some experts worry it will send a message to Black and Hispanic students that they are not wanted on college campuses, or push them to more troubled schools, like for-profit institutions. It could also lead to a rollback of groups and programs that center on race.

New York Times, With Supreme Court Decision, College Admissions Could Become More Subjective, Anemona Hartocollis, July 1, 2023 (print ed.). U.S. colleges have a game plan, like emphasizing the personal essay, after a ruling struck down affirmative action programs.

In the Supreme Court decision striking down racial and ethnic preferences in college admissions, Chief Justice John G. Roberts Jr. had harsh words for Harvard and the University of North Carolina, calling their admissions process “elusive," “opaque” and “imponderable.”

But the court’s ruling against the two universities on Thursday could lead to an admissions system that is even more subjective and mysterious, as colleges try to follow the law but also admit a diverse class of students.

Officials at some universities predicted that there would be less emphasis on standardized metrics like test scores and class rank, and more emphasis on personal qualities, told through recommendations and the application essay — the opposite of what many opponents of affirmative action had hoped for.

“Will it become more opaque? Yes, it will have to,” said Danielle Ren Holley, who is about to take over as president of Mount Holyoke College. “It’s a complex process, and this opinion will make it even more complex.”

In an interview, Edward Blum, the founder and president of Students for Fair Admissions, the plaintiff, defended what he called “standard measurements” of academic qualifications, citing studies that showed test scores, grades and coursework helped determine which students would thrive at competitive schools.

He promised to enforce the decision, saying that Students for Fair Admissions and its counsel “have been closely monitoring potential changes in admissions procedures.”

“We remain vigilant and intend to initiate litigation should universities defiantly flout this clear ruling,” he wrote in a statement on Thursday.
Image

New York Times, In Affirmative Action Ruling, Fierce Disagreements Between Black Justices, Abbie VanSickle, July 1, 2023 (print ed.). Justices Clarence Thomas and Ketanji Brown Jackson harshly criticized each other’s perspectives, reflecting deep divisions over the practice.

In an extraordinary exchange that played out among the pages of a landmark decision by the Supreme Court declaring race-conscious admissions at colleges and universities across the nation unlawful, two Black justices battled over the merits of affirmative action.

In sharp rebuttals, Justices Clarence Thomas and Ketanji Brown Jackson harshly criticized each other’s perspectives, reflecting the deep divisions and passions Americans have over the practice. Even as they appeared to agree over the policy’s aim — remedying the longstanding discrimination and segregation of Black Americans — they drew opposite conclusions on how and what to do.

Both justices were raised by Black family members who suffered under Jim Crow and segregation, and both gained admission to elite law schools (Justice Jackson to Harvard, Justice Thomas to Yale) before ascending to the Supreme Court. But their interpretation of the law and their understanding of affirmative action and its role in American life could not be farther apart.

In his concurring opinion, Justice Thomas called out Justice Jackson directly in a lengthy critique, singling out her views on race and leveling broader criticisms of liberal support for affirmative action.

“As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of Black Americans still determining our lives today,” he wrote.

In her dissent, Justice Jackson pointedly pushed back, denouncing his remarks as a “prolonged attack” that responded “to a dissent I did not write in order to assail an admissions program that is not the one U.N.C. has crafted.”

New York Times, Five Ways College Admissions Could Change, Stephanie Saul, July 1, 2023 (print ed.). The Supreme Court’s affirmative action decision could upend how students apply to college. Here’s how Students may change what they write about in the college essay. And they may no longer be tortured by the SAT and ACT.

As for children of alumni? The pressure is on to end their advantage in the admissions game.

The Supreme Court’s ruling on Thursday that ended race-conscious admissions is widely expected to lead to a dramatic drop in the number of Black and Hispanic students at selective colleges.

But the court’s decision could have other, surprising consequences, as colleges try to follow the law but also admit a diverse class of students.
The personal essay becomes more important.

The Supreme Court made a point of noting that students could highlight their racial or ethnic backgrounds in the college essay.

June

June 29

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

 New York Times, Supreme Court Curtails Affirmative Action at U.S. Colleges, Adam Liptak, June 29, 2023. Strikes Down Race-Conscious Admissions at 2 Universities. The court rejected programs at Harvard and the University of North Carolina. The vote was 6 to 3, with the court’s liberal members in dissent.
The decision was expected to set off a scramble as schools revisit their admissions practices. In disavowing race as a factor in achieving educational diversity, the court all but ensured that the student population at the campuses of elite institutions will become whiter and more Asian and less Black and Latino.

The Supreme Court on Thursday ruled that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful, curtailing affirmative action at colleges and universities around the nation, a policy that has long been a pillar of higher education.

The vote was 6 to 3, with the court’s liberal members in dissent. In a footnote, Chief Justice Roberts, right, exempted military academies from the ruling in light of “the potentially distinct interests” they present. There had been discussion of whether the military needed to maintain affirmative action in training its future officer corps based on a judgment that it would be bad for military discipline and cohesiveness if the leadership cadre did not reflect the diversity of the rank-and-file troops who do the bulk of fighting and dying in wars.

Justices Sotomayor and Jackson both criticized the majority for making an exception for military academies. Justice Sotomayor called it arbitrary, while Justice Jackson, left, wrote, “The court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).”

Justin Driver, a professor at Yale Law School and an expert on the Supreme Court’s education rulings, predicted that the affirmative action decision could cause some state universities to move to race-neutral strategies for increasing diversity, such as the “top percent” model used in Texas.

In that state, students with the highest grade point averages at each high school are guaranteed admission to a public university, including the system’s flagship, the University of Texas at Austin.

In a statement celebrating the decision, Edward Blum, the conservative activist behind the lawsuits against Harvard and U.N.C., said: “Ending racial preferences in college admissions is an outcome that the vast majority of all races and ethnicities will celebrate. A university doesn’t have real diversity when it simply assembles students who look different but come from similar backgrounds and act, talk and think alike.”

In Justice Jackson’s dissent in the U.N.C. case, she wrote: “It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical and counterproductive outcome. To impose this result in that clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the clause’s promise, is truly a tragedy for us all.”

• Politico, Read the Supreme Court’s ruling, June 29, 2023. The court ruled against race-conscious admissions programs in higher education.

Washington Post, State affirmative action bans helped White, Asian students, hurt others, Janice Kai Chen and Daniel Wolfe, Updated June 29, 2023. While highly selective schools saw diversity decline, data shows other schools saw growth

The Supreme Court has ruled to restrict affirmative action and eliminate race-conscious admissions in higher education, overturning more than four decades of court precedent.

A Washington Post review of 30 years of race and ethnicity data from the eight states that currently ban race-based admission policies in higher education shows how a federal ban on affirmative action might harm minority students across the United States.

Where race-based admission policies were banned in 2021, already underrepresented racial groups had even lower representation when compared to states without bans. Banned states in 2021 include Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington.

Two lawsuits, against the University of North Carolina and Harvard University, are behind the high court’s decision to federally restrict affirmative action. Plaintiffs in both cases contend that race-conscious admissions favor some students — Black, Hispanic and Native Americans — over others.

How is affirmative action used in college admissions?

At the University of North Carolina, White students have been overrepresented for the past 30 years, with the White freshman class approaching racial parity only in 2020, when compared to state demographics. Black students have remained underrepresented by around 10 points.

June 24

Washington Post, Supreme Court says White House can continue to set deportation priorities, Robert Barnes, June 24, 2023 (print ed.). The justices said Texas and Louisiana lacked the legal standing to challenge the executive branch’s priorities on who should be deported.

The U.S. Supreme Court on Friday ruled for the Biden administration in an important immigration case, saying Texas and Louisiana lacked the legal standing to challenge the executive branch’s priorities on who should be deported.

At issue is a Biden administration policy that says the Department of Homeland Security should focus on arresting recent border crossers and immigrants who pose a threat to public safety, rather than the millions of other noncitizens who have lived here for years.

The policy was a departure from the Trump administration, which said anyone in the country illegally could be targeted for deportation.

Friday’s decision was 8-1, with Justice Samuel A. Alito Jr. the lone dissenter.

“The States have brought an extraordinarily unusual lawsuit,” Justice Brett M. Kavanaugh wrote for the majority. “They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

The Biden administration’s guidelines were challenged by Texas, Louisiana and a number of other Republican-led states, and halted nationwide by a district judge in Texas, who said the guidelines violated federal law. The justices voted 5-4 last summer not to let the guidelines take effect while the Biden administration challenged the lower-court ruling.

Washington Post, Editorial: The Supreme Court can save itself from the crisis the justices created, Editorial Board, June 24, 2023 (print ed.). Another week has brought another story of a Supreme Court justice accepting expensive favors from someone who stands to benefit from goodwill on the bench. The highest court in the land is in a crisis of its own making — so it should save itself, or Congress should force it to.

There are, of course, differences between Justice Samuel A. Alito Jr.’s luxury Alaskan fishing excursion on the dime of hedge-fund mogul Paul Singer and another Federalist Society donor; Justice Clarence Thomas’s superyacht cruises and lopsided real estate transactions with Texas billionaire and conservative campaign contributor Harlan Crow; Justice Neil M. Gorsuch’s land sale to one of the nation’s biggest law firms; and Chief Justice John G. Roberts Jr.’s wife’s headhunting fees from several top legal shops.

There are also differences between all these recently reported examples and the failure of justices including Sonia Sotomayor to recuse from cases involving book publishers from whom they’ve taken millions of dollars in book proceeds.

Reckoning with these distinctions has become an unending exercise. What matters more than the particulars is a problem that threatens the court’s foundations: Justices’ standards for their own behavior don’t align with what the public should expect of nine of the most powerful people in the country. At a time when trust in the institution is already depleted, this is perilous.

Ruth Marcus: Justice Alito is reminded of a fishing trip he’d like to forget

Existing federal law imposes some disclosure and recusal rules. But the justices aren’t held to the Judicial Conference’s code of conduct that applies to lower-court judges. Chief Justice Roberts has explained that the Supreme Court shouldn’t be subject to precisely the same standards as the lower courts because of its “unique institutional setting” — and he’s right. There are thousands of judges and only nine justices. Those thousands of judges don’t have the constitutional last word on matters of vast national significance. The nine justices do.

Yet, this isn’t reason for the justices to point to the Judicial Conference’s strictures when convenient and ignore them when they are not. Rather, they should articulate separate rules for themselves that are explicit, specific and tailored to the nation’s highest court.

The court should conduct a searching analysis of what impropriety and the appearance of impropriety look like from people in their particular position. Consider recusal: The justices are correct to remove themselves from deciding a case only under a narrow set of circumstances, such as when they’ve previously participated in a case before being placed on the court or when they have significant financial or personal interests in a proceeding. That’s because when a justice bows out, no one can simply step in as a replacement — and the absence of a single member can easily determine a case’s result, with no opportunity for a do-over.

The court should explain when it believes recusal is merited and why. And when a justice does choose to recuse in a specific case, the public should get a brief explanation, too. The nine justices recently signed a statement indicating they “may provide” exactly this information — but it’s optional.

Treating recusal as a last resort, however, makes other rules matter even more. Justices should set stringent standards on what sorts of gifts justices should not take and activities they should not engage, so they can avoid raising public suspicions. The court should also hold itself to the strictest standards of disclosure, so that anything approaching a conflict of interest is out in the open. If a justice decides to accept that seat on a private plane, at least the public will know about it — and the justice will know that the public knows.

June 23

Washington Post, With focus on Alito trip, Senate Democrats vow action on ethics bill, Robert Barnes and John Wagner, June 23, 2023 (print ed.). ProPublica reports Justice Samuel A. Alito took free luxury fishing trip in 2008, did not disclose flight on billionaire’s plane.

Scrutiny of the Supreme Court intensified Wednesday after Justice Samuel A. Alito Jr. took the extraordinary step of writing an op-ed column to defend a luxury fishing trip to Alaska years ago that was partially financed by a politically active billionaire. Senate Democrats said the revelation of the trip, by the news organization ProPublica, was one more reason they would move forward on legislation to tighten ethics rules for the justices.

Although there appears to be little interest in the Republican-led House in forcing changes upon the high court, Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) said his panel would consider legislation after the Senate returns from its Fourth of July recess.

“The highest court in the land should not have the lowest ethical standards. But for too long that has been the case with the United States Supreme Court. That needs to change,” Durbin said in a joint statement with Sen. Sheldon Whitehouse (D-R.I.), who chairs a subcommittee with jurisdiction over the federal judiciary.

Whitehouse has pushed legislation that would require the court to adopt a code of conduct and establish clear rules dictating when justices must recuse themselves from cases. A separate bipartisan bill by Sens. Angus King (I-Maine), who caucuses with the Democrats, and Lisa Murkowski (R-Alaska) would force the Supreme Court to establish an ethics code and require it to appoint an official to examine potential conflicts and public complaints. Legislation introduced by Sen. Chris Murphy (D-Conn.) would require the Judicial Conference of the United States, the policymaking body for the federal courts, to issue an ethics code that would apply to the court.

It was not immediately clear which provisions might be considered in July.

The statement by Durbin and Whitehouse took direct aim at Chief Justice John G. Roberts Jr., saying that the Supreme Court is in the midst of “an ethical crisis of its own making” and that Roberts “could resolve this today, but he has not acted.”

• Washington Post, ProPublica asked about Alito’s travel. He replied in the Wall Street Journal, Paul Farhi, June 22, 2023 (print ed.). Questioned about an undisclosed fishing trip hosted by a GOP billionaire, the Supreme Court justice instead shared his rebuttal in a rival media outlet — before the investigative journalists could publish their scoop.

New York Times, Opinion: Does Justice Alito Hear Himself? Jesse Wegman, June 23, 2023 (print ed.). For someone who wields unimaginable power and exudes utter confidence in his own moral rectitude, Justice Samuel Alito is an exceptionally touchy guy.

Exhibit A: His decision to devote time and energy to a newspaper essay defending himself against charges of ethical and legal violations that had not yet been published, and which he considered invalid in the first place. The essay, in both form and substance, epitomizes the bitterness and superciliousness that he has demonstrated in regular doses throughout his years on the Supreme Court.

The nature of the charges, detailed in a deeply reported article published by ProPublica on Tuesday evening, will sound familiar after the recent revelations about the casual attitude of several justices regarding the most basic ethical standards.

In 2008, Justice Alito accepted a free flight to a luxury fishing resort in Alaska on a private jet owned by Paul Singer, the hugely wealthy hedge-fund owner and major conservative donor. When one of Mr. Singer’s companies later appeared before the court in a multibillion-dollar lawsuit against the Argentine government, it won its case, eventually netting $2.4 billion. Justice Alito voted in the majority. He neither recused himself from the case nor reported the free flight, which could have cost him up to $100,000 on the open market, and which appears to be a violation of a federal law requiring the disclosure of such gifts.

New York Times, Opinion: Is There Any Twinge of Regret Among the Anti-Abortion Justices? Linda Greenhouse (shown at right on the cover of her memoir), June 23, 2023. Because Jehovah’s Witnesses believe that saluting the flag or reciting the Pledge of Allegiance amounts to worshiping secular authority, they prohibit their school-aged children from engaging in the practice.

In 1940, with war raging in Europe and patriotic fervor rising at home, the Supreme Court ruled that the Constitution provided no religious exemption from what many public schools deemed an essential civic duty. The decision upheld a Pennsylvania school district’s expulsion of a Jehovah’s Witness brother and sister. A single member of the court dissented.

A mere three years later, even though the United States itself was now at war, the court reversed itself. In a new flag-salute case from West Virginia, three members of the original majority switched sides and two justices who had joined the court since 1940 voted with them. One of those two, Robert Jackson, wrote the new majority opinion, strategically avoiding the contested question of religion in favor of an eloquent defense of free speech. “Compulsory unification of opinion achieves only the unanimity of the graveyard,” he wrote in West Virginia State Board of Education v. Barnette. The new decision vindicated the initial 8-to-1 ruling’s lone dissent by a vote of 6 to 3.

Historians understand that what impelled such a stark reversal was the justices’ dismay at the violence and prejudice that the first decision, Minersville School District v. Gobitis, had unleashed; some people, and not only a few, had evidently taken the court as having labeled Jehovah’s Witnesses as un-American and disloyal. Mobs attacked individual Witnesses and destroyed their places of worship. More than 2,000 Witness children were thrown out of school, and some of their parents criminally prosecuted. The consequences of the decision were alarming, and the country paid close attention as the court took up the issue for reconsideration. The public relief that greeted the second decision was captured by Time magazine’s headline on its account of the ruling: “Blot Removed.”

What brings this historical episode to mind is the approaching anniversary of Dobbs v. Jackson Women’s Health Organization, the decision last June 24 that eradicated the constitutional right to abortion. About 40 percent of states have bans that make abortion illegal or functionally unavailable, though in some of those states the proscriptions have been blocked pending the outcome of court challenges. The crisis in reproductive health care that Dobbs propelled is acute and growing. There have been, in other words, alarming consequences.

A report titled “Care Post-Roe: Documenting cases of poor-quality care since the Dobbs decision,” published in mid-May by teams of experts from the University of California at San Francisco and the University of Texas at Austin, documents the experience of health care providers in states that have banned or strictly limited abortion for women whose troubled pregnancies required medical intervention that the doctors felt unable to provide.

The 24-page report consists largely of excerpts from submissions by 50 health care providers, many of whom felt, as one wrote, that “our hands are tied” as they waited anxiously for their patients’ conditions to deteriorate to the point where the pregnancy could be terminated within the narrow exceptions permitted by the state laws. When doctors turned women away, their next encounter was sometimes in the emergency room or intensive care unit as the patient lay bleeding or even near death. Sometimes doctors arranged to transfer their patients to other states, but this was not always possible and in any event consumed precious time. “This delay in care was a ‘near miss’ and increased morbidity,” one doctor wrote in a mixture of clinical and everyday speech.

“It is important to note that these are not ‘one-off’ situations,” the report’s authors wrote. “Similar scenarios were reported in many of the states that have imposed new restrictions on abortion care since the Dobbs ruling.” This public health crisis makes no distinction on the basis of race or class; half the cases reported involved women who were nonwhite or primarily Spanish-speaking.

And so the question: A year after sowing so much chaos and misery, are any of the five members in Justice Samuel Alito’s Dobbs majority sorry? Even a little? I’m not so naïve as to think there is even a slim chance they would reverse themselves. I just wonder whether they feel even a twinge of regret.

Unlike the justices in 1940, these justices — Clarence Thomas, Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh in addition to Alito — can’t claim surprise. Refusing to join the decision for Roe’s overruling, Chief Justice John Roberts warned in his separate opinion that the majority opinion would cause “a serious jolt to the legal system.” The Alito five would have known from reading the briefs that about a dozen states had enacted “trigger laws” designed to ban abortion as soon as the Supreme Court opened the gate. Valuing fetal life over the lives of women and girls was no doubt a feature, not a bug, in the majority’s view; that was, after all, the point of Dobbs.

And Justice Alito himself was well aware of the pair of flag-salute cases. He invoked West Virginia Board of Education v. Barnette in an effort to show that overruling precedent has a noble lineage. He fudged the point, however, in his bland description of what had impelled the court’s reversal in 1943, saying only that “Barnette stands out because nothing had changed during the intervening period other than the court’s belated recognition that its earlier decision had been seriously wrong.”

For Barnette to be useful to Justice Alito, he had to make it stand for “nothing had changed” because during the 50 years between Roe v. Wade and Dobbs, nothing really did change. Nothing, that is, except the steady accumulation of justices put on the court by presidents who had pledged, in the Republican Party platform that all the party’s presidential candidates ran on from 1980 to 2020, to appoint judges and justices who would overturn Roe. Finally, on last June 24, there were enough of them.

Another difference between Barnette and Dobbs is that the three justices who changed their minds after the first flag-salute case were motivated by facts, not by ideology or by passing a nomination litmus test. Justices Hugo Black, William O. Douglas and Frank Murphy were appointees of President Franklin D. Roosevelt, who it’s safe to assume during the early 1940s had other concerns than how his appointees might vote on whether children could be compelled to salute the flag. Donald Trump, by contrast, announced during his presidential campaign that his Supreme Court appointees would overturn Roe v. Wade “automatically.” All three of his nominees, Justices Gorsuch, Kavanaugh and Barrett, did just that when the moment arrived.

So no, I don’t think the Dobbs justices are sorry. They did what they were put there to do, what they wanted to do, and they were quite explicit in washing their hands of the consequences. The issue of abortion, Justice Kavanaugh wrote in his concurring opinion, “will be resolved by the people and their representatives in the democratic process in the states or Congress.” And if “the people” in whose hands the court placed the issue are sorry about Dobbs? They can follow Justice Kavanaugh’s advice and take their sorrow, or their fury, or their despair to the polls.

June 22

Washington Post, Supreme Court rules against Navajo Nation request for water rights, Robert Barnes, June 22, 2023. The Supreme Court on Thursday rejected the Navajo Nation’s attempt to force the federal government to do more to secure water for its huge and arid reservation in the West.

In a 5-4 decision, Justice Brett M. Kavanaugh said an 1868 peace treaty between the United States and the Navajos does not require the federal government to take any “affirmative steps” to secure rights on behalf of the tribe to water from the Colorado River, which runs along part of the 17-million acre reservation that stretches through Arizona, New Mexico and Utah.

“[I]t is not the Judiciary’s role to rewrite and update this 155-year-old treaty,” Kavanaugh wrote. “Rather, Congress and the President may enact — and often have enacted — laws to assist the citizens of the western United States, including the Navajos, with their water needs.”

The decision drew a sharply worded dissent from Kavanaugh’s fellow conservative, Justice Neil M. Gorsuch, a former federal judge from Colorado who has emerged during his time on the high court as its most outspoken advocate for Indian tribes.

“Where do the Navajo go from here? To date, their efforts to find out what water rights the United States holds for them have produced an experience familiar to any American who has spent time at the Department of Motor Vehicles,” Gorsuch wrote. “The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another.”

Navajo Nation President Buu Nygren said that the ruling was disappointing but that he was encouraged that four justices — Gorsuch and liberals Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — were sympathetic.

June 21

Washington Post, ProPublica asked about Alito’s travel. He replied in the Wall Street Journal, Paul Farhi, June 21, 2023. Questioned about an undisclosed fishing trip hosted by a GOP billionaire, the Supreme Court justice instead shared his rebuttal in a rival media outlet — before the investigative journalists could publish their scoop.

Supreme Court Justice Samuel A. Alito Jr., shown above in a file photo, took issue with questions raised by the investigative journalism outlet ProPublica about his travel with a politically active billionaire, and on Tuesday evening, he outlined his defense in an op-ed published by the Wall Street Journal.

Yet Alito was responding to a news story that ProPublica hadn’t yet published.

Alito’s Journal column, bluntly headlined “ProPublica Misleads Its Readers,” was an unusual public venture by a Supreme Court justice into the highly opinionated realm of a newspaper editorial page. And it drew criticism late Tuesday for effectively leaking elements of ProPublica’s still-in-progress journalism — with the assistance of the Journal’s editorial-page editors.

An editor’s note at the top of Alito’s column said that ProPublica reporters Justin Elliott and Josh Kaplan had sent a series of questions to Alito last week and asked for a response by Tuesday at noon. The editor’s note doesn’t mention that ProPublica hadn’t yet published its story — nor that Alito did not provide his answers directly to ProPublica.

 June 20

Politico Magazine, What happened to the 6-3 Supreme Court? The next two weeks will tell us, James Romoser, June 20, 2023. In small cases (and a few big ones), the liberal bloc is winning more often than the conservative majority. But the most divisive decisions have yet to be announced.

The Supreme Court is entering the home stretch of a term that — at least so far — has confounded the narrative of a court fully captured by the right: Ideologically polarized 6-3 votes have temporarily disappeared, and the liberal justices are getting their way more often than the court’s staunchest conservatives.

In the 39 decisions in argued cases that the court has handed down to date, the three justices most often dissatisfied with the results have been the three most conservative justices. Justice Samuel Alito has dissented in 10 cases this term, Clarence Thomas has dissented in nine and Neil Gorsuch has dissented in seven, according to a POLITICO analysis of Supreme Court votes.

All the other justices have three or fewer dissents. And the justice who has been in the majority most often is a shocker: Justice Sonia Sotomayor, the court’s most liberal member who in prior terms has consistently been the court’s most frequent dissenter.

All of this could change, however, over the next two weeks as the court churns out decisions in some of the term’s biggest and most politically divisive cases.

June 18

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

New York Times, A Year After Dobbs, Advocates Plan to Fight for Access to Birth Control, Sheryl Gay Stolberg, June 18, 2023 (print ed.). After Justice Clarence Thomas cast doubt on whether the Constitution affords a right to contraception, advocates are preparing for state-by-state battles.

One year after Justice Clarence Thomas said the Supreme Court should reconsider whether the Constitution affords Americans a right to birth control, Democrats and reproductive rights advocates are laying the groundwork for state-by-state battles over access to contraception — an issue they hope to turn against Republicans in 2024.

The justice’s argument in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade and the right to abortion, galvanized the reproductive rights movement. House Democrats, joined by eight Republicans, promptly passed legislation that would have created a national right to contraception. Republicans blocked a companion bill in the Senate.

Now, reproductive rights advocates are pressing their case in the states. Even before Dobbs, some states had taken steps to protect the right to contraception, by either statute or constitutional amendment; 13 states and the District of Columbia currently have such protections, according to KFF, a health policy research organization.

This month, the movement seemed on the cusp of victory in Nevada, where the Democratic-controlled Legislature passed a bill, with support from a handful of Republicans, that would have guaranteed a right to contraception. But on Friday, Gov. Joe Lombardo, a Republican, quietly vetoed the measure. Proponents of codifying such a right saw Nevada as a test case.

June 16

New York Times, Supreme Court Upholds Law to Keep Native American Adoptees With Tribes, Abbie VanSickle, June 16, 2023 (print ed.). The 7-2 ruling was seen as a victory for tribes that argued that a blow to a 1978 adoption law would upend the basic principles of tribal rights.

The Supreme Court on Thursday upheld a 1978 law aimed at keeping Native American adoptees with their tribes and traditions, handing a victory to tribes that had argued that a blow to the law would upend the basic principles that have allowed them to govern themselves.

Justice Amy Coney Barrett wrote the majority opinion. She was joined by six other justices. Justices Clarence Thomas and Samuel A. Alito Jr., dissented.

Justice Barrett acknowledged the myriad thorny subjects raised in the challenge to the law, which pitted a white foster couple from Texas against five tribes and the Interior Department as they battled over the adoption of a Native American child.

“The issues are complicated,” she wrote. “But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.”

Under federal law, preference is given to Native families, a policy that the couple said violated equal protection principles and discriminated against Native children and non-Native families who wanted to adopt them because it hinges on placement based on race.

The tribes have said that they are political entities, not racial groups, and that doing away with that distinction, which underpins tribal rights, could imperil nearly every aspect of Indian law and policy, including measures that govern access to land, water and gambling.

New York Times, Analysis: Is the Supreme Court out of step with public opinion? We’re looking at its major rulings in 2023 to help answer that question, Adam Liptak and Eli Murray, June 7, 2023. The Supreme Court made a lurch to the right a year ago in blockbuster decisions on abortion, guns, religion and climate change.

The court — dominated by a 6-to-3 conservative majority, including three justices appointed by President Donald J. Trump — faces another set of important cases this term, including ones on affirmative action, student loans and civil rights for gay people. Its rulings will help answer questions about whether the move to the right will continue — and whether the court’s decisions are out of step with public opinion.

According to a survey conducted in April by researchers at Harvard, Stanford and the University of Texas, the public is often — but hardly always — divided along partisan lines on how the court should rule in significant cases from the term that started in October and is expected to end in late June. Here is a look at those cases.

June 12

Washington Post, Alabama case bucks what was a steady path for Roberts court on voting, Robert Barnes and Ann E. Marimow, June 12, 2023. The Supreme Court’s voting-rights decision Thursday — that Alabama’s Republican-led legislature drew congressional districts that unlawfully diluted the political power of Black voters — shocked the legal and political landscapes because of what had come before.

The court under Chief Justice John G. Roberts Jr. had a nearly unbroken record of weakening the protections of the landmark Voting Rights Act. But Roberts’s majority opinion Thursday maintained the court’s precedents regarding states’ obligations to create electoral districts in which minority voters have a shot at electing candidates of their choice.

Supreme Court votes in favor of Black voters in Alabama

With the Roberts court, the status quo was considered a win by civil rights groups who had braced for another setback. That’s because under Roberts, the court has consistently sided with states in saying even the threat of election fraud can justify voting restrictions that fall heavier on minority voters. And the justices had already taken two big swings at the Voting Rights Act.

In one, they ruled that state and localities that had discriminated against minority voters in the past no longer must have election laws cleared in advance by federal officials.

And in the other, the court said the threat of election fraud can justify voting restrictions that fall heavier on minority voters. Such decisions have favored conservative states with Republican majorities, while civil rights organizations have been the losers.

Additionally, Roberts said federal courts have no constitutional role to play in policing partisan gerrymandering. While both parties benefit from that practice, it has been Republicans who say courts should stay out.

Chief Justice of the United States John Roberts arrives before President Joe Biden delivers the State of the Union address to a joint session of Congress at the Capitol, Feb. 7, 2023, in Washington. Roberts has declined a request from the Senate Judiciary Committee to testify at a hearing on ethical standards at the court, instead providing the panel with a statement of ethics reaffirmed by the court's justices. (AP pool photo by Jacquelyn Martin.)

Washington Post, Opinion: Roberts isn’t an institutionalist. He’s a weather vane, Jennifer Rubin, right, June 12, 2023. The Supreme Court’s ruling in Allen v. Milligan, holding that Alabama’s redistricting map violated Section 2 of the Voting Rights Act, shocked the legal world. This was the same court that eviscerated Section 2 in Brnovich v. Democratic National Committee, creating a “guideline” that would make most states’ plans impervious to challenge. Chief Justice John G. Roberts Jr., who held in the 2013 decision in Shelby County v. Holder that “things have changed dramatically” in the decades since the Voting Rights Act, wrote the majority opinion.

My how things have changed.

In striking down the preclearance process in Shelby, Roberts insisted that “no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.” Now, he staunchly defended a district-court ruling striking down districts gerrymandered to the detriment of Blacks and sang the praises of Section 2.

Roberts warned the risk of inequality “is greatest ‘where minority and majority voters consistently prefer different candidates’ and where minority voters are submerged in a majority voting population that ‘regularly defeat[s]’ their choices. … A district is not equally open, in other words, when minority voters face — unlike their majority peers — bloc voting along racial lines, arising against the backdrop of substantial racial discrimination within the State, that renders a minority vote unequal to a vote by a nonminority voter.”

Has Roberts had an epiphany about the existence of voting discrimination?

The turnaround is even more dramatic when one considers that Roberts’s conservative colleagues, including Justice Brett M. Kavanaugh, stayed the district court’s ruling, a move that allowed Alabama (and other states) to proceed with discriminatory maps that could well have tilted the House to Republicans in 2022.

Roberts’s defenders might argue that he reads each case on its merits. But others have postulated that Roberts and the other conservative justices are setting us up for decisions in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard, cases in which, civil rights groups fear, the court will invalidate race-conscious affirmative action programs. Still others surmise that Roberts has heard the rising anger at the court on everything from Dobbs v. Jackson Women’s Health Organization to Justice Clarence Thomas’s financial reporting scandal; the “institutionalist” Roberts, they posit, wants to soothe the public by showing he’s not a partisan hack, enlisting Kavanaugh, who concurred, to calm the waters.

If it is the latter, then this would hardly be the first time Roberts turned on a dime, not as a matter of jurisprudential analysis but apparently for political reasons — to assuage the public, which he knew would erupt if the court issued a radical decision out of step with public opinion. Recall his switch in position on the Affordable Care Act.

Ruth Marcus: On voting rights, the justices followed the law. Shouldn’t be news, but it is.

As detailed in “The Chief: The Life and Turbulent Times of Chief Justice John G. Roberts Jr.” by Joan Biskupic and in other reporting, Roberts was initially part of a 5-4 majority in National Federation of Independent Business v. Sebelius to strike down the law. But Roberts got cold feet. After assigning the majority to himself, he groped around for a way to preserve the law and avoid public outrage that would likely have erupted had the court struck down then-President Barack Obama’s greatest legislative achievement and the first national health-care plan for healthy, working-age adults. The resulting opinion, widely criticized as logically attenuated and downright weird, preserved the statute based on Congress’s taxing power. This was not jurisprudence but politics, as Roberts put his finger to the wind.

In Dobbs, Roberts struggled to avoid the political backlash he saw coming. In oral argument and in his concurrence, Roberts struggled to come up with a political compromise. Could the court protect abortions before 16 weeks? The legal grounds for such a compromise were shaky at best. His desperate effort to save the court from itself amounted to a failed attempt to bargain colleagues down from a risky, radical position. He was unsuccessful, but he surely saw the result: a political backlash of such force that it swamped the expected midterm red wave and drove the court’s approval to historic lows.

George F. Will: Ruling on redistricting, the Supreme Court again repudiates colorblind law

If political opinion “tester” explains Roberts’s past compromises and the shift from Shelby to Milligan, he should be viewed not so much as an institutionalist (who would protect the jurisprudential integrity of the court and insist on abiding by the highest ethical standards) but as an unprincipled politician, trying to prevent his radical colleagues from sinking the court and the Republican Party when he suspects blowback to decisions from the court’s right-wing majority.

In that sense, Roberts has become the worst sort of results-oriented judge. Rather than legal consistency, respect for precedent or even a judicial philosophy, he’s become the quintessential weather vane. How much can the public tolerate? How far must he let his conservative colleagues drift before the court falls into political oblivion?

Roberts’s transformation from the umpire calling balls and strikes to the stadium manager (how do we excite the fans but keep them from rioting?) underscores the need for a complete restructuring of the court. If the court’s decisions are now the result of radical ideology tempered only by Roberts’s political barometer, then it cannot be considered a court at all. It’s a purely political body. A political response — expanding the court — would be in order. At the very least, the justices should serve limited terms.

Though Section 2 has gotten a reprieve from the court, Roberts has given the game away. The court has not solved its credibility problem. To the contrary, it has made it worse.

New York Times, Opinion: If the Supreme Court Abolishes Affirmative Action, Here’s What Women Need to Do, Shira A. Scheindlin, June 12, 2023 (print ed.). Judge Scheindlin, shown at right in an AP photo, served on the United States District Court for the Southern District of New York from 1994 to 2016. Any day now the Supreme Court will decide two cases that will determine the future of affirmative action — one involving race-conscious admissions at the University of North Carolina and a companion case involving Harvard.

Although debates around affirmative action have typically focused on people of color, the policy has also applied to gender, and women have been among affirmative action’s greatest beneficiaries. Now, after decades of allowing these programs in college admissions, the Supreme Court appears poised to weaken or dismantle efforts to make higher education more available to members of historically underrepresented minority groups.

As a successful white woman who served for many years as a judge for the U.S. District Court for the Southern District of New York, I feel it is incumbent upon me and other white women in my generation to reaffirm the policies that helped us secure our positions in political institutions, academia, business, medicine and law. If the Supreme Court overturns or neuters this well-settled law, every one of us who proudly bore the title “the first woman” must work to ensure underrepresented communities maintain access to elite educational institutions.

Opponents of affirmative action suggest that it is no longer needed because the United States has reached the stage where everyone is treated equally. This is simply, and unfortunately, not the case. People of color are woefully underrepresented in many classrooms and careers. As only one example, Black lawyers make up only 2.2 percent of law firm partners, according to a 2021 National Association of Law Placement report, with Black and Latino women at less than 1 percent.

Opponents also falsely claim that students of color are being admitted to fill racial quotas, depriving white students of the chance to obtain a coveted spot. But affirmative action, as practiced today, does not discriminate against one group in favor of another.

Rather it considers race as one factor among many to put the applicant’s experiences in context. Courts have repeatedly held that a holistic admissions process — which includes letters of recommendation, guidance counselor reviews, extracurricular activities, alumni interviewer impressions, essays and academic performance — ensures that all of an applicant’s experiences and characteristics are considered.

Affirmative action policies, whether legally mandated or voluntary, have proven overwhelmingly effective in helping historically marginalized groups gain a higher education, and thus achieve the success that flowed from that education. For example, because colleges and universities (including those that were formerly all-male) made a concerted effort to recruit women, today women are now much more likely than men to graduate from college. By 2019, women outnumbered men in the college-educated labor force. People of color are entitled to these same opportunities, based at least in part on their historical exclusion.

Last August, more than 60 major American companies, including Apple, Google, Starbucks and United Airlines, filed a legal brief with the Supreme Court urging it to protect affirmative action. Those companies said the policy was a critical tool for creating a pipeline to diverse workforces and boardrooms. Similarly, an alliance of over 300 law firms filed a brief underscoring the importance of developing diverse leaders equipped with the skills to thrive in the global marketplace. Thirty-five retired military leaders, including four former chairmen of the Joint Chiefs of Staff, submitted a brief stating that eliminating affirmative action programs would “impede our military’s ability to acquire essential entry-level leadership attributes and training essential to cohesion.”

When filling judicial law clerkships, a highly sought-after post, I made a concerted effort to find diverse applicants, but an overwhelming number of clerks chosen by federal judges are white. For the Supreme Court term that began last October, of the 38 clerks, 25 were men and 13 were women, the least balanced in terms of gender in the last five years, according to the newsletter Original Jurisdiction. The court doesn’t release data on race, but the newsletter’s author, David Lat, said that, based on his research, two were Black, two were Hispanic and two were Asian.

It takes substantial, deliberate efforts to ensure that well-qualified people of color have the same opportunities in education and the work force that once were the exclusive preserve of white men. This is imperative for our democracy to thrive. As Justice Sandra Day O’Connor’s majority opinion upholding affirmative action in Grutter v. Bollinger recognized in 2003, paths to leadership must be “visibly open to talented and qualified individuals” of all backgrounds so that these leaders will have “legitimacy in the eyes of the citizenry.”

Moreover, exposing future leaders to diverse perspectives and experiences produces benefits that are fundamental to a functioning democracy, ranging from better problem-solving to reduced prejudice and increased empathy.

We rightly celebrate the achievements of women and people of color on the bench. The federal judiciary, for example, now has the first Black female Supreme Court justice, the first Black female judge on the United States Court of Appeals for the 11th Circuit, and the first Latino judge on the Court of Appeals for the District of Columbia Circuit. And the nomination of the first Latina judge to sit on the Court of Appeals for the Fifth Circuit is pending in the Senate.

But there is still more progress to be made, in the courts and beyond, especially for women of color who face unique barriers because of sexism and racism. White women must leverage the privilege and positions they have achieved and stand alongside communities of color.

We have an obligation to recommend, hire, promote, nominate and honor not only those who look like us but those who do not. If we all do that only twice in our careers we will have gone beyond merely talking about diversity to achieving the goal of creating a country in which opportunity and advancement are open to all.

The social fabric of universities, and consequently our greater society and our democracy, depends on it.

Shira A. Scheindlin is a former federal judge in the Southern District of New York and was a co-chair of the board of the Lawyers’ Committee for Civil Rights Under Law.

New York Times, The Failed Affirmative Action Campaign That Shook Democrats, Michael Powell and Ilana Marcus, June 12, 2023 (print ed.). The Supreme Court will soon rule on race-conscious admissions, a core Democratic issue. But a California vote exposed a gulf between the party and voters.

The 2020 campaign to restore race-conscious affirmative action in California was close to gospel within the Democratic Party. It drew support from the governor, senators, state legislative leaders and a who’s who of business, nonprofit and labor elites, Black, Latino, white and Asian.

The Golden State Warriors, San Francisco Giants and 49ers and Oakland Athletics urged voters to support the referendum, Proposition 16, and remove “systemic barriers.” A commercial noted that Kamala Harris, then a U.S. senator, had endorsed the campaign, and the ad also suggested that to oppose it was to side with white supremacy. Supporters raised many millions of dollars for the referendum and outspent opponents by 19 to 1.

“Vote for racial justice!” urged the American Civil Liberties Union of Northern California.

None of these efforts persuaded Jimmie Romero, a 63-year-old barber who grew up in the working-class Latino neighborhood of Wilmington in Los Angeles. Homelessness, illegal dumping, spiraling rents: He sat in his shop and listed so many problems.

Affirmative action was not one of those.

“I was upset that they tried to push that,” Mr. Romero recalled in a recent interview. “It was not what matters.”

Mr. Romero was one of millions of California voters, including about half who are Hispanic and a majority who are Asian American, who voted against Proposition 16, which would have restored race-conscious admissions at public universities, and in government hiring and contracting.

The breadth of that rejection shook supporters. California is a liberal bastion and one of the most diverse states in the country. That year, President Biden swamped Donald Trump by 29 percentage points in California, but Proposition 16 went down, with 57 percent of voters opposing it.

New York Times, The Failed Affirmative Action Campaign That Shook Democrats, Michael Powell and Ilana Marcus, June 12, 2023 (print ed.). The Supreme Court will soon rule on race-conscious admissions, a core Democratic issue. But a California vote exposed a gulf between the party and voters.

The 2020 campaign to restore race-conscious affirmative action in California was close to gospel within the Democratic Party. It drew support from the governor, senators, state legislative leaders and a who’s who of business, nonprofit and labor elites, Black, Latino, white and Asian.

The Golden State Warriors, San Francisco Giants and 49ers and Oakland Athletics urged voters to support the referendum, Proposition 16, and remove “systemic barriers.” A commercial noted that Kamala Harris, then a U.S. senator, had endorsed the campaign, and the ad also suggested that to oppose it was to side with white supremacy. Supporters raised many millions of dollars for the referendum and outspent opponents by 19 to 1.

“Vote for racial justice!” urged the American Civil Liberties Union of Northern California.

None of these efforts persuaded Jimmie Romero, a 63-year-old barber who grew up in the working-class Latino neighborhood of Wilmington in Los Angeles. Homelessness, illegal dumping, spiraling rents: He sat in his shop and listed so many problems.

Affirmative action was not one of those.

“I was upset that they tried to push that,” Mr. Romero recalled in a recent interview. “It was not what matters.”

Mr. Romero was one of millions of California voters, including about half who are Hispanic and a majority who are Asian American, who voted against Proposition 16, which would have restored race-conscious admissions at public universities, and in government hiring and contracting.

The breadth of that rejection shook supporters. California is a liberal bastion and one of the most diverse states in the country. That year, President Biden swamped Donald Trump by 29 percentage points in California, but Proposition 16 went down, with 57 percent of voters opposing it.

June 9

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

New York Times, Indictment Brings Trump Story Full Circle, Peter Baker, June 9, 2023 (print ed.). Former President Trump assailed Hillary Clinton for her handling of sensitive information. Now, the same issue threatens his chances in the 2024 election.

There was a time, not that long ago really, when Donald J. Trump said he cared about the sanctity of classified information. That, of course, was when his opponent was accused of jeopardizing it and it was a useful political weapon for Mr. Trump.

Throughout 2016, he castigated Hillary Clinton for using a private email server instead of a secure government one. “I’m going to enforce all laws concerning the protection of classified information,” he declared. “No one will be above the law.” Mrs. Clinton’s cavalier handling of the sensitive information, he said, “disqualifies her from the presidency.”

Seven years later, Mr. Trump faces criminal charges for endangering national security by taking classified documents when he left the White House and refusing to return all of them even after being subpoenaed. Even in the what-goes-around-comes-around department of American politics, it is rather remarkable that the issue that helped propel Mr. Trump to the White House in the first place now threatens to ruin his chances of getting back there.

The indictment handed up by a federal grand jury at the request of the special counsel Jack Smith effectively brings the Trump story full circle. “Lock her up,” the crowds at his campaign rallies chanted with his encouragement. Now he may be the one locked up if convicted on any of the seven reported counts that include conspiracy to obstruct justice and willful retention of documents.

The indictment is the second brought against the former president in recent months, but in many ways it eclipses the first in terms of both legal gravity and political peril. The first indictment, announced in March by the Manhattan district attorney, charged Mr. Trump with falsifying business records to cover up hush money to an adult film actress who alleged that they had a sexual tryst. The second is brought by a federal prosecutor representing the nation as a whole, the first in American history against a former president, and concerns the nation’s secrets.

While Mr. Trump’s defenders have tried to brush off the first as the work of a local elected Democrat concerning issues that, however unseemly, seem relatively petty and happened before he took office, the latest charges stem directly from his responsibility as the nation’s commander in chief to safeguard data that could be useful to America’s enemies.

Republican voters may not care if their leader slips money to a porn star to keep quiet, but will they be indifferent about impeding authorities seeking to recover clandestine material?

Perhaps. Mr. Trump certainly hopes so. The Manhattan indictment only seemed to boost his poll ratings rather than hurt him. And so he immediately cast the latest indictment as part of the most extravagant conspiracy in American history, one that in his telling seems to involve a wide range of local and federal prosecutors, grand jurors, judges, plaintiffs, regulators and witnesses who have all lied for years to set him up while he is the one truth teller, no matter what the charges.

“I never thought it possible that such a thing could happen to a former President of the United States, who received far more votes than any sitting President in the History of our Country, and is currently leading, by far, all Candidates, both Democrat and Republican, in Polls of the 2024 Presidential Election,” he wrote on his social media site, making multiple misleading assertions in a single sentence. “I AM AN INNOCENT MAN!”

New York Times, A Times investigation went inside Mar-a-Lago, where thousands partied near secret files. (From 2022), Anjali Singhvi, Mika Gröndahl, Maggie Haberman, Weiyi Cai and Blacki Migliozzi, Dec. 15, 2022. A Times investigation shows how Donald J. Trump stored classified documents in high-traffic areas at Mar-a-Lago, where guests may have been within feet of the materials.

Mar-a-Lago is the primary home of former President Donald J. Trump. It is also a private club reserved for 500 members and a venue for parties and fund-raisers that are frequently attended by hundreds of people at a time.

New York Times, These are some of the charges Mr. Trump faces, Charlie Savage, June 9, 2023 (print ed.). Taking a look at what the prosecutors may have to prove to a jury. A grand jury has charged former President Donald J. Trump with a total of seven counts, according to two people familiar with the indictment.

While the precise details of all the charges are not yet clear, the people familiar with the matter said the charges include willfully retaining national defense secrets in violation of the Espionage Act, conspiracy to obstruct justice, and making false statements.

Here is a closer look.

New York Times, Republicans in Congress are decrying the indictment, vowing retaliation, Luke Broadwater, June 9, 2023 (print ed.). House Republicans reacted with outrage on Thursday night to the federal indictment of former President Donald J. Trump, vowing to use their majority in Congress to fight the Justice Department.

“WITCH HUNT,” was posted on the Twitter account of the Republican-led House Judiciary Committee within minutes of news of the indictment becoming public.

The chairman of that panel, Representative Jim Jordan of Ohio, has used his perch to attempt to pressure the Justice Department over what he views as unfair treatment of Mr. Trump. Mr. Jordan this week sent a letter to Attorney General Merrick Garland demanding unredacted documents concerning the investigation of the special counsel, Jack Smith.

“It’s a sad day for America,” Mr. Jordan said in a statement on Thursday. “God bless President Trump.”

Members of Congress have no power to stop criminal charges, but they can attempt to interfere with prosecutors through their legislative powers, such as issuing subpoenas, demanding witness interviews or documents, restricting Justice Department funding and using the platform of their offices to attempt to publicly influence the case.

Several Republicans who are closely allied with Mr. Trump said, without evidence, that the indictment was an attempt to distract from their investigation into President Biden’s family, including his son Hunter’s business dealings. They made clear that they would target federal law enforcement in retaliation.

Representative Marjorie Taylor Greene, Republican of Georgia, said the case against Mr. Trump was a “stain on our nation that the F.B.I. and D.O.J. are so corrupt and they don’t even hide it anymore.” She added, “We must win in 2024. We must beat these sick people.”

Representative Matt Gaetz, Republican of Florida and one of Mr. Trump’s closest allies, predicted that the former president would prevail against the charges, and that his rivals would be imprisoned.

“This scheme won’t succeed. President Donald Trump will be back in the White House and Joe Biden will be Hunter’s cellmate,” Mr. Gaetz wrote on Twitter.

It was the second time this year that House Republicans rallied to Mr. Trump’s defense after he was charged criminally. In April, Speaker Kevin McCarthy pledged to use the investigative powers of the House to hold Alvin L. Bragg, the Manhattan district attorney, “accountable” after Mr. Trump was charged in New York with 34 counts of falsifying business records.

Washington Post, Trump charged in secret documents case, Devlin Barrett, Perry Stein and Josh Dawsey, June 9, 2023 (print ed.). Former president, shown above in a file photo and the first ever to face federal criminal charges, posts on social media that he must appear in court in Miami on Tuesday,  The former president posted on social media that he must appear in court in Miami on Tuesday.

Former president Donald Trump said Thursday night that he’s been charged by the Justice Department in connection with the discovery that hundreds of classified documents were taken to his Mar-a-Lago home after he left the White House — a seismic event in the nation’s political and legal history.

Several Trump advisers confirmed the charges. Trump, who is the frontrunner for the 2024 Republican presidential nomination, said he has been summoned to appear in federal court in Miami on Tuesday at 3 p.m. A seven-count indictment has been filed in federal court naming the former president as a criminal defendant, according to people familiar with the matter who spoke on the condition of anonymity to describe a case that has yet to be unsealed.

The charges include illegal retention of government secrets, obstruction of justice and conspiracy, according to people familiar with the matter. It is the second time Trump has been criminally charged since March, when he was indicted in state court in New York on 34 counts of falsifying business records related to hush-money payments from 2016. Trump, who has denied wrongdoing in both cases, is the only former president ever charged with a crime.

“I have been indicted, seemingly over the Boxes Hoax,” Trump posted on social media site Truth Social. He claimed he was being treated unfairly. “I never thought it possible that such a thing could happen to a former President of the United States,” he said in a screed that ended: “I AM AN INNOCENT MAN!”

A spokesman for special counsel Jack Smith, who has been running the investigation since November, declined to comment.

The charges cap a high-stakes investigation that began in early 2022 and slowly built steam over the summer, until FBI agents conducted a court-ordered search of Trump’s home in early August which turned up 103 classified documents, even after Trump’s advisers had claimed they had conducted a diligent search in June for such papers and handed over all they could find.

In the months since that raid, investigators have been gathering evidence to determine whether the former president deliberately set out to obstruct law-enforcement efforts to recover the top-secret material at his Florida home and private club.

Much of the investigation centered around the actions of Trump and his closest advisers following a May subpoena from the government for the return of all documents with classified markings. Witness and videotape evidence gathered by the FBI indicated that Trump may have sought to keep documents, despite having turned over some material to authorities in response to the subpoena.

June 8

New York Times, Supreme Court Says Alabama Diluted Power of Black Voters, Adam Liptak, June 8, 2023. In a Surprise Move, Justices Reject the State’s Voting Map, Voting rights advocates had feared the decision would undermine the Voting Rights Act, which instead appeared to emerge unscathed.

The Supreme Court, in a surprise decision, ruled that Alabama had diluted the power of Black voters by drawing a congressional voting map with a single district in which they made up a majority.

Chief Justice John G. Roberts Jr. wrote the majority opinion in the 5-to-4 ruling. He was joined by Justice Brett M. Kavanaugh and the court’s three liberal members, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

Voting rights advocates had feared the decision would undermine the Voting Rights Act, which instead appeared to emerge unscathed.

The chief justice wrote that there were legitimate concerns that the law “may impermissibly elevate race in the allocation of political power within the states.” He added: “Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.”

The case was part of a pitched battle over redistricting playing out across the country. Civil rights leaders say the redistricting process often disadvantages growing minority communities. Republican state officials say the Constitution allows only a limited role for the consideration of race in drawing voting districts.

The case started after Alabama’s Legislature, which is controlled by Republicans, redrew the congressional map to take account of the 2020 census.

The state has seven congressional districts, and its voting-age population is about 27 percent Black. The new map maintained a single district in which Black voters made up a majority.

That district has long elected a Democrat, while the state’s other six districts are represented by Republicans.

After Black voters and advocacy groups challenged the map under the Voting Rights Act, the landmark civil rights law enacted in 1965 to protect minority voters, a unanimous three-judge panel of the Federal District Court in Birmingham ruled that the Legislature should have fashioned a second district “in which Black voters either comprise a voting-age majority or something quite close to it.”

The unsigned decision was joined by Judge Stanley Marcus, who ordinarily sits on the U.S. Court of Appeals for the 11th Circuit, in Atlanta, and who was appointed by President Bill Clinton; and by Judges Anna M. Manasco and Terry F. Moorer, both appointed by President Donald J. Trump.

The panel found that voting in the state is racially polarized and that it would be possible to draw “a second reasonably configured district” to allow Black voters to elect their favored candidates.

Last year, the Supreme Court temporarily blocked the lower court’s ruling by a 5-to-4 vote, ensuring that the 2022 election would take place using the Legislature’s map, the one with a single district in which Black voters were in the majority.

More U.S. Supreme Court Decisions and Developments

• Financial Disclosures: Justices Clarence Thomas and Samuel Alito delayed releasing their annual financial disclosure forms. For Thomas, the delay comes after recent revelations cast scrutiny on his travel, gifts and real estate dealings with a conservative billionaire donor.
• Strike Losses: The Supreme Court ruled that federal labor law did not protect a union from potential liability for damage to an employer that arose during a strike.
• Admissions: A new appeals court case asks whether schools can use race-neutral tools to achieve racial diversity. The justices may use it to answer questions left open in its coming decisions on affirmative action.

June 7

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

The Independent, Investigative Report: Prosecutors ready to ask for Trump indictment on obstruction and Espionage Act charges, Andrew Feinberg, June 7, 2023. The Independent has learned that prosecutors are prepared to ask grand jurors to vote on charges as early as Thursday

The Department of Justice is preparing to ask a Washington, DC grand jury to indict former president Donald Trump for violating the Espionage Act and for obstruction of justice as soon as Thursday, adding further weight to the legal baggage facing Mr Trump as he campaigns for his party’s nomination in next year’s presidential election.

The Independent has learned that prosecutors are ready to ask grand jurors to approve an indictment against Mr Trump for violating a portion of the US criminal code known as Section 793, which prohibits “gathering, transmitting or losing” any “information respecting the national defence”.

The use of Section 793, which does not make reference to classified information, is understood to be a strategic decision by prosecutors that has been made to short-circuit Mr Trump’s ability to claim that he used his authority as president to declassify documents he removed from the White House and kept at his Palm Beach, Florida property long after his term expired on 20 January 2021.

That section of US criminal law is written in a way that could encompass Mr Trump’s conduct even if he was authorised to possess the information as president because it states that anyone who “lawfully having possession of, access to, control over, or being entrusted with any document ...relating to the national defence,” and “willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it” can be punished by as many as 10 years in prison.

It is understood that prosecutors intend to ask grand jurors to vote on the indictment on Thursday, but that vote could be delayed as much as a week until the next meeting of the grand jury to allow for a complete presentation of evidence, or to allow investigators to gather more evidence for presentation if necessary.

A separate grand jury that is meeting in Florida has also been hearing evidence in the documents investigation. That grand jury was empaneled in part to overcome legal issues posed by the fact that some of the crimes allegedly committed by Mr Trump took place in that jurisdiction, not in Washington. Under federal law, prosecutors must bring charges against federal defendants in the jurisdiction where the crimes took place.

Meidas Touch Network, Breaking: DOJ Prepared to INDICT Trump as Meadows Makes STUNNING Move, June 7, 2023. MeidasTouch host Ben Meiselas reports on the breaking news that Special Counsel Jack Smith is ready to indict Donald Trump as early as this week and that Mark Meadows, the former Trump chief of staff shown above in a file photo, has agreed to plead guilty to several federal charges as part of a deal he has already received for limited immunity in exchange for his testimony.

June 4

Chief Justice of the United States John Roberts arrives before President Joe Biden delivers the State of the Union address to a joint session of Congress at the Capitol, Feb. 7, 2023, in Washington. Roberts has declined a request from the Senate Judiciary Committee to testify at a hearing on ethical standards at the court, instead providing the panel with a statement of ethics reaffirmed by the court's justices. (AP pool photo by Jacquelyn Martin.)

Washington Post, Opinion: Roberts should use the LBJ model on Clarence Thomas, Ruth Marcus, right, June 4, 2023 (print ed.). Keith Watts keeps a framed copy of his decade-old rejection letter from John G. Roberts Jr. The chief justice wouldn’t be able to speak to Watts’s group of corporate lawyers, Roberts told the California attorney. And, Roberts said, he was also returning the first-edition copy of a 19th-century legal treatise Watts had sent along with the invitation.

“It is a wonderful volume, but I am afraid that ethical constraints prevent me from accepting it,” Roberts wrote in the January 2013 letter, which Watts shared with me.

How quaint. Imagine what the fastidious chief justice thinks — imagine how he cringes — on learning about the gusher of benefits that Dallas billionaire Harlan Crow bestowed on Justice Clarence Thomas. All-expenses-paid yacht trips. Private jet flights. Private school tuition for Thomas’s grandnephew. The purchase of his mother’s house. Where Roberts felt obliged to return Watts’s book, Thomas had no evident compunction about accepting a Frederick Douglass Bible valued at $19,000 from Crow.

Do you have a lot of friends who give you $19,000 gifts?

All of this amounts to a headache of migraine proportions for the court, and therefore for Roberts. “I want to assure people that I am committed to making certain that we as a court adhere to the highest standards of conduct,” Roberts said during remarks at the American Law Institute last month. “We are continuing to look at things we can do to give practical effect to that commitment, and I am confident that there are ways to do that consistent with our status as an independent branch of government and the Constitution’s separation of powers.”

What’s a chief justice to do? Roberts has been known to deflect such questions with the observation that he is merely one of nine. But this understates the authority that he could exert, if he so chose. Herewith, my modest proposal for the chief: As unnatural an act as it would be for the conflict-averse Roberts, he needs to tap his inner LBJ. Announcement first, agreement later.

“You’re goddamn sure going to serve, I’ll tell you that,” President Lyndon B. Johnson told Sen. Richard Russell (D-Ga.) in November 1963 about joining the Warren Commission. (Actually, the announcement had already gone out.) Likewise for Roberts. He should decide what the court needs to do and effectively dare his colleagues to dissent.

My proposal has two parts. The first: Roberts should simply tell his colleagues that he plans to announce that the court will officially subject itself to the ethical standards that are binding on other federal judges. Period.

Roberts seems to have had difficulty getting the justices to sign on to this approach, and, granted, my idea invests him with authority he does not formally possess. He is chief justice, not justice in chief; the other members of the court have equal votes. Still, the time for cajoling and waiting has passed; the Thomas revelations are too damaging for the institution to simply let things fester.He should further name a committee — perhaps of retired judges — to consider what adjustments need to be made to tailor the ethics rules to the particular needs of the high court. For instance, how to deal with recusals, since justices — unlike their lower court brethren — can’t be replaced if they recuse themselves from hearing a case, and therefore might be more reluctant to step aside. One (no doubt unwelcome) suggestion: The justices’ difficult situation would be easier to stomach if they were all to take the sensible step of avoiding investments in individual stocks. The most recent financial disclosure statements show both Roberts and Justice Samuel A. Alito Jr. holding such stocks.

The recusal issue helps illustrate how the court can make progress on ethics, but also how incremental that progress can be. Recusal is usually a black box, with no reason offered for stepping aside. But the justices, in the joint ethics statement sent to the Judiciary Committee in April, noted that a justice “may provide a summary explanation,” and Justice Elena Kagan, a few weeks later, duly noted her “prior government employment” as the basis for not taking part in a death penalty case. Alito, it seemed, couldn’t be bothered to provide any detail when the court issued an order on Tuesday declining to hear a case involving an energy company in which he owns stock. The order merely noted that Alito “took no part” in the case. Really? Why not explain?

As I said, this would be decidedly out of character for Roberts. But this is the Roberts court. Its legacy is his legacy. When Roberts was confirmed as chief justice in September 2005, the court’s approval rating stood at 56 percent in the Gallup poll; the most recent Gallup numbers — from before the Thomas-Crow revelations — have that number down to 40 percent, tied for the historic low. The Marquette Law School poll found that public approval of the court has dropped from 47 percent in January to 41 percent last month.

The court’s approval bounces around. But this is a perilous trajectory. It is happening on the chief’s watch. That makes it his problem to address, if not to solve.

June 2

New York Times, Opinion: The Supreme Court Has Earned a Little Contempt, Josh Chafetz (author of “Congress’s Constitution” and a professor at Georgetown University Law Center), June 2, 2023. Although the Supreme Court has been deciding cases at a glacial pace this term — and that with an almost comically small docket of only 59 merits cases — the justices have found other ways to keep busy.

They have been spinning their ethical lapses (Justice Clarence Thomas), blowing off congressional oversight (Chief Justice John Roberts), giving interviews whining about public criticism (Justice Samuel Alito) and presenting awards to one another (Justice Elena Kagan to Mr. Roberts).

In the cases it has decided, the Supreme Court has gutted an important provision of the Clean Water Act and made it easier for private litigants to mount constitutional challenges to an administrative agency’s structure or existence. Opinions still to come threaten to strike down everything from affirmative action in education to student debt relief to the Indian Child Welfare Act.

Court observers might be tempted to describe all this as a relatively recent development, a function of the court’s 6-to-3 Republican-appointed supermajority. The University of Michigan law professor Leah Litman has called this the “YOLO court” (for “you only live once”), because of the majority’s apparent sense of liberation in pursuing long-held conservative goals. Mark Lemley of Stanford placed the beginning of the “imperial Supreme Court” in 2020.

Mr. Lemley is right to decry the self-aggrandizing nature of the court. But his dating is somewhat off. Judicial self-aggrandizement has been in the works for a lot longer: It has been a hallmark of the John Roberts years.

Over roughly the past 15 years, the justices have seized for themselves more and more of the national governing agenda, overriding other decision makers with startling frequency. And they have done so in language that drips with contempt for other governing institutions and in a way that elevates the judicial role above all others.

The result has been a judicial power grab.

Judges have long portrayed themselves as neutral, apolitical conduits of the law, in contrast to the sordid political branches. This portrayal serves to obscure the institution of the judiciary and to foreground the abstract, disembodied concept of the law. In turn, it serves to empower judges, who present themselves not as one type of political actor but rather as the voice of the majestic principles of the law.

But Mr. Roberts’s judiciary has increasingly taken subtext and made it text. Here are three thematic examples out of many.

Campaign Finance Law; Congressional Oversight; Federal Regulation.

In all of these areas and in plenty more, the justices have seized for themselves an active role in governance. But perhaps even more consequentially, in doing so, they have repeatedly described other political institutions in overwhelmingly derogatory terms while either describing the judiciary in flattering terms or not describing it at all — denying its status as an institution and positioning it as simply a conduit of disembodied law.

This is the ideological foundation for the Roberts-era judicial power grab.

May

May 26

New York Times, Oath Keepers Leader Is Sentenced to 18 Years in Jan. 6 Sedition Case, Alan Feuer, May 26, 2023 (print ed.). The sentence for Stewart Rhodes was the longest so far in the federal investigation of the attack and the first issued to a defendant convicted of sedition.

Stewart Rhodes, the leader of the far-right Oath Keepers militia, was sentenced on Thursday to 18 years in prison for his conviction on seditious conspiracy charges for the role he played in helping to mobilize the pro-Trump attack on the Capitol on Jan. 6, 2021.

The sentence, handed down in Federal District Court in Washington, was the most severe penalty so far in the more than 1,000 criminal cases stemming from the Capitol attack — and the first to be increased for fitting the legal definition of terrorism.

It was also the first to have been given to any of the 10 members of the Oath Keepers and another far-right group, the Proud Boys, who were convicted of sedition in connection with the events of Jan. 6.

For Mr. Rhodes, 58, the sentence was the end of a tumultuous and unusual career that included Army service, a stint on Capitol Hill and a law degree from Yale. His role as the Oath Keepers’ founder and leader thrust him into the spotlight and will now send him to prison for what is likely to be the better part of his remaining days.

At a dramatic, nearly four-hour hearing, Judge Amit P. Mehta chided Mr. Rhodes for seeking for years through his leadership of the Oath Keepers to have American democracy “devolve into violence.”

“You, sir,” Judge Mehta went on, directly addressing the defendant, “present an ongoing threat and a peril to this country, to the Republic and the very fabric of our democracy.”

As the hearing opened, prosecutors urged Judge Mehta to sentence Mr. Rhodes to 25 years in prison, arguing that accountability was needed for the violence at the Capitol and that American democracy was on the line.

Kathryn L. Rakoczy, one of the lead prosecutors in the case, told Judge Mehta that Mr. Rhodes had been calling for attacks against the government for more than a decade and that his role in the Jan. 6 attack was part of a longstanding pattern.

The Oath Keepers leader, Ms. Rakoczy said, exploited his talents and influence to goad his followers into rejecting the results of the 2020 election and ultimately mobilized them into storming the Capitol in two separate military-style “stacks” in a violent effort to keep President Donald J. Trump in office.

“It is conduct that threatened — and continues to threaten — the rule of law in the United States,” she said.

Ms. Rakoczy also noted that Mr. Rhodes had shown no remorse for undermining the lawful transition of power and continued to advocate political violence. Just four days ago, she said, Mr. Rhodes gave an interview from jail, repeating the lie that the election had been marred by fraud and asserting that the government was “coming after those on the political right.”

“It’s not going to stop until it’s stopped,” Mr. Rhodes said during the interview, adding that the country needed “regime change.”

As if to prove the government’s point, Mr. Rhodes — in an orange prison smock and his trademark black eye patch — gave a defiant address to the court, blaming the news media for demonizing the Oath Keepers for leading the Capitol attack. He also compared himself to the Soviet-era dissident Aleksandr Solzhenitsyn and to the beleaguered main character in the Kafka novel “The Trial.”

“I am a political prisoner,” Mr. Rhodes said.

The hearing opened a week of sentencing proceedings for eight other members of the Oath Keepers who were convicted at two separate trials — in November and January — of charges that included not only seditious conspiracy but also the obstruction of a congressional proceeding to certify the 2020 election. One of Mr. Rhodes’ deputies, Kelly Meggs, who once led the group’s Florida chapter, was set to be sentenced later on Thursday.

The process for sentencing all the defendants began on Wednesday, when some police officers and congressional staff members testified about the horror they experienced on Jan. 6.

Several spoke through tears on the witness stand, describing lasting symptoms of post-traumatic stress and survivor’s guilt, particularly after many of their colleagues resigned and some died by suicide in the months after the attack.

“I am an introverted, depressed shell of my former self,” said Harry Dunn, a Capitol Police officer who encountered members of the Oath Keepers in the Capitol rotunda. When Mr. Dunn referred to the officers who were injured on Jan. 6 as “real oath keepers,” he shot an angry glance toward Mr. Rhodes and other members of the group in the courtroom.

In court papers filed this month, prosecutors dwelled on the importance of severely punishing Mr. Rhodes and his subordinates, stating that the acceptance of political violence was on the rise in the United States and that lengthy prison terms were needed to serve as a deterrent against future unrest.

“As this court is well aware, the justice system’s reaction to Jan. 6 bears the weighty responsibility of impacting whether Jan. 6 becomes an outlier or a watershed moment,” the prosecutors wrote. “Left unchecked, this impulse threatens our democracy.”

In court on Thursday, prosecutors persuaded Judge Mehta to increase Mr. Rhodes’ sentence by arguing that his repeated calls for violence against the government and his plan to stage an arsenal of weapons outside Washington in case of an emergency on Jan. 6 should be punished as an act of terrorism.

“This wasn’t blowing up a building,” Ms. Rakoczy said. But “organizing an armed force” and advocating “bloody civil war” came “pretty close,” she said.

The government had asked to apply the terrorism enhancement in four previous Jan. 6 cases, but judges — including Judge Mehta — had denied the requests each time.

From the outset of the hearing, Mr. Rhodes’ lawyers — Phillip Linder and James L. Bright — were constrained in their efforts to ask for leniency, unable to fully claim that Mr. Rhodes was remorseful or no longer presented a threat to the government, knowing that his stemwinder statement to the court was coming.

May 25

Richard “Bigo” Barnett in Speaker Nancy Pelosi’s office on Jan. 6, 2021. Mr. Barnett was sentenced to more than four years in prison on Wednesday, May 24, 2023 (Agence France-Presse photo Saul Loeb via Getty Images). 

New York Times, Jan. 6 Rioter Who Reclined in Pelosi’s Office Given Sentence of More Than 4 Years, Alan Feuer and Zach Montague, May 25, 2023 (print ed.). Richard “Bigo” Barnett, who was pictured with his foot on a desk in the speaker’s office, had been convicted of eight crimes for his role in the attack on the Capitol by Trump supporters.

On Arkansas man who became notorious for putting his foot on a desk in Speaker Nancy Pelosi’s office during the attack on the Capitol by supporters of President Donald J. Trump was sentenced on Wednesday to four and a half years in prison.

The man, Richard “Bigo” Barnett, was found guilty at a trial in January of eight criminal offenses, including interfering with law enforcement during a civil disorder and obstructing the certification of the 2020 election that took place at the Capitol on Jan. 6, 2021.

After deliberating for less than three hours, a jury in Federal District Court in Washington rejected Mr. Barnett’s testimony that he had ended up in Ms. Pelosi’s office suite while looking for a bathroom and that the 950,000-volt stun gun he was carrying that day was not working.

Prosecutors argued during the trial that Mr. Barnett, 63, arrived at the Capitol “prepared for violence” and intending to stop Mr. Trump from leaving office after losing the 2020 election.

In court papers filed before the sentencing hearing, prosecutors accused Mr. Barnett of seeking to profit from his case by selling autographed photos of himself leaning back with his foot on a desk in Ms. Pelosi’s office and by considering seeking copyright protections for an obscene note he left Ms. Pelosi that day, reading in part, “Hey Nancy, Bigo was here.”
Understand the Events on Jan. 6

On Wednesday, prosecutors sought to emphasize the lasting scars inflicted by the rioters. They cited Emily Berret, a staff member for Ms. Pelosi who recalled that of eight colleagues who were trapped inside the speaker’s office when the mob first overwhelmed the Capitol, six exited public service shortly thereafter.

Prosecutors also accused Mr. Barnett of lying several times in testimony during his trial, adding that he showed “brazen disrespect for every form of authority he encountered.”

“Barnett recognizes no authority but himself and is willing to do ‘whatever it takes’ to get what he wants,” the prosecutors wrote, “even if it requires harming others, stealing or breaking the law.”

Just before issuing the sentence, Judge Christopher Cooper said he was dismayed by the way Mr. Barnett had sought to cash in on his notoriety.

“You’re 63 years old; you’re too old for this nonsense,” he said. “But for better or worse you have become one of the faces of Jan. 6, and I think you enjoy it.”

Mr. Barnett was among the first defendants arrested in connection with the Jan. 6 assault and quickly became one of the best-known rioters, along with figures like Jacob Chansley, the so-called QAnon Shaman, who stormed the building in a horned helmet and was later sentenced to 41 months in prison.

Mr. Barnett has also frequently and vocally criticized the Justice Department for overreaching in its efforts to investigate the Capitol attack. He has also accused the police officers who defended lawmakers that day of instigating the assault on the building by using what he has described as excessive force.

His lawyers, Jonathan Gross and Bradford Geyer, had asked Judge Cooper to sentence Mr. Barnett to only one year in prison and to give him credit for the nearly four months he spent behind bars before his trial. The lawyers said in court papers that Mr. Barnett still believed the police used a “disproportionate response” during the attack.

“Mr. Barnett is outspoken about his political views and has attended dozens of rallies in his life, but was always peaceful, never violent,” the lawyers wrote.

More than 480 people have been sentenced so far in connection with the Capitol attack, and about 275 are serving at least some time in prison, Justice Department officials say. The terms have ranged from a high of 14 years to only days behind bars.

May 24

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

Proof, Investigative Commentary on The Trump Trials, Vol. 15: New Indictments Now Expected; NYC Criminal Trial Date Set; a Finding of Sexual Abuse and Defamation, Seth Abramson, left, May 24, 2023. This new Proof series—authored by a longtime criminal defense attorney and leading Trump biographer—will unpack recent events in the historic trials of disgraced former president Donald Trump.

Department of Justice Special Counsel Jack Smith is said to be wrapping up the significantly easier part of his two-part remit—the Mar-a-Lago stolen documents probe—and according to the Wall Street Journal, Donald Trump and his lawyers expect the former president to be indicted. You can read about this here.

Apparently Trump and his counsel are now so certain he’s about to be indicted—potentially for Obstruction of Justice but maybe also, now, given the evidence Smith has that Trump well knew that he could not legally take the documents, under the even-more-serious Espionage Act—that they have made an extraordinary request to meet in private with Attorney General Merrick Garland.

This request is certain to go nowhere, as it would constitute unprecedented interference by Main Justice in the work of one of its special counsels (albeit just the sort of interference Trump eagerly sought from his own DOJ when he was president) and because it includes in its sole paragraph a wholly baseless claim that the famously independent and nonpartisan Smith is in fact some sort of Democratic Party operative, but it does underscore that if Trump were still President of the United States this would be the moment that he’d fire Smith in the same way he repeatedly tried to fire Robert Mueller during the Trump-Russia investigation.

What is so stunning about the current situation is that with Trump already under dozens of felony indictments in Manhattan; with the near-certainty that he’ll soon face federal felonies in D.C. for stealing (and possibly seeking to profit from) classified documents from the White House; with Fulton County District Attorney Fani Willis apparently planning to indict Trump in August on state felonies; with Smith currently widening rather than narrowing down his second-stage federal criminal investigation into Trump (the one involving January 6); and with Trump himself making sure that his Sexual Abuse and Defamation trial will continue to be in the news for the rest of this year and next (see below), we’re looking at a presidential candidate who’ll be in more civil and criminal legal trouble by far than any candidate in American history.

Indeed, as Florida Governor Ron DeSantis readies himself to announce his candidacy tonight (Wednesday, May 24, 2023) in a Twitter Spaces event with white supremacist Elon Musk, it is clearer than ever before that DeSantis does not expect to beat Trump so much as expect him to eventually be forced out of the 2024 campaign by outside forces.

May 18

U.S. Supreme Court Associate Justice Clarence Thomas, left, and his billionaire friend and benefactor Harlan Crow (file photos).

New York Times, Why the Supreme Court Is Blind to Its Own Corruption, Randall D. Eliason, right, May 18, 2023 (print ed.). Mr. Eliason is the former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia.

The scandal surrounding Justice Clarence Thomas has further eroded the already record-low public confidence in the Supreme Court. If Chief Justice John Roberts wonders how such a thing could have happened, he might start looking for answers within the cloistered walls of his own courtroom.

Over more than two decades, the Supreme Court has gutted laws aimed at fighting corruption and at limiting the ability of the powerful to enrich public officials in a position to advance their interests. As a result, today wealthy individuals and corporations may buy political access and influence with little fear of legal consequences, either for them or for the beneficiaries of their largess.

No wonder Justice Thomas apparently thought his behavior was no big deal.

He has been under fire for secretly accepting, from the Republican megadonor Harlan Crow, luxury vacations worth hundreds of thousands of dollars, a real estate deal (involving the home where his mother was living) and the payment of private school tuition for a grandnephew the justice was raising. Meanwhile, over the years, conservative groups with which Mr. Crow was affiliated filed amicus briefs in several matters before the Supreme Court.

That sounds like the very definition of corruption. But over the years, many justices — and not just conservatives — have championed a different definition.

The landmark case is the court’s 2010 decision in Citizens United v. Federal Election Commission. A five-justice majority — including Justice Thomas — struck down decades-old restrictions on independent campaign expenditures by corporations, holding that they violated the companies’ free speech rights. It rejected the argument that such laws were necessary to prevent the damage to democracy that results from unbridled corporate spending and the undue influence it can create.

The government’s legitimate interest in fighting corruption, the court held, is limited to direct quid pro quo deals, in which a public official makes a specific commitment to act in exchange for something of value. The appearance of potentially improper influence or access is not enough.

In dissent, Justice John Paul Stevens accused the majority of adopting a “crabbed view of corruption” that the court itself had rejected in an earlier case. He argued that Congress has a legitimate interest in limiting the effects of corporate money on politics: “Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”

Citizens United opened the floodgates to unlimited corporate spending on behalf of political candidates and to the influence that spending necessarily provides. But the decision didn’t come out of nowhere: The court has often been unanimous in its zeal for curtailing criminal corruption laws.

In the 1999 case of United States v. Sun-Diamond Growers of California, the court unanimously held, in effect, that it is not a violation of the federal gratuities statute for an individual or corporation to have a public official on private retainer. The court rejected a theory known as a “status gratuity,” where a donor showers a public official with gifts over time based on the official’s position (that is in contrast with a more common gratuity, given as a thank you for a particular act by the official). The quite reasonable rationale behind that theory was that when matters of interest to the donor arose, the past gifts (and hope for future ones) might lead the official to favor his or her benefactor.

That actually sounds a lot like the Crow-Thomas relationship. But the court held that such an arrangement is not unlawful. The gratuities law, the court ruled, requires that a particular gift be linked to a particular official act. Without such a direct link, a series of gifts to a public official over time does not violate the statute, even if the goal is to curry favor with an official who could act to benefit the gift giver.

In the wake of Sun-Diamond, federal prosecutors increasingly turned to a more expansive legal theory known as honest services fraud. But in Skilling v. United States, the court ruled that theory is limited to cases of bribes and kickbacks — once again, direct quid pro quo deals. Three justices, including Justice Thomas, wanted to go even further and declare the statute that prohibits honest services fraud unconstitutional.

The court proceeded to limit its “crabbed view of corruption” even further. In the 2016 case McDonnell v. United States, the court held that selling government access is not unlawful. Gov. Bob McDonnell of Virginia and his wife, Maureen, accepted about $175,000 in secret gifts from the businessman Jonnie Williams, who wanted Virginia’s public universities to perform research studies on his company’s dietary supplement to assist with its F.D.A. approval. In exchange, Mr. McDonnell asked subordinates to meet with Mr. Williams about such studies and hosted a luncheon at the governor’s mansion to connect him with university health researchers.

A jury convicted the McDonnells on several counts of corruption. The U.S. Court of Appeals for the Fourth Circuit — hardly known as a bastion of liberalism — unanimously affirmed the convictions. But the Supreme Court unanimously reversed, holding that the things Mr. McDonnell did for Mr. Williams did not qualify as “official acts” under federal bribery law. Selling official access may be tawdry, the court held, but it is not a crime.

Those who think Justice Thomas may be guilty of corruption may not realize just how difficult the court itself has made it to prove such a case. Now only the most ham-handed officials, clumsy enough to engage in a direct quid pro quo, risk prosecution.

Viewed in light of this history, the Thomas scandal becomes less surprising. Its own rulings would indicate that the Supreme Court doesn’t believe what he did is corrupt. A powerful conservative with interests before the court who regularly provides a justice with vacations worth more than his annual salary is, as the court said in Citizens United, merely the “appearance” of potential corruption. In the court’s view, the public has no reason to be concerned.

But the public clearly is, and should be, concerned over the ability of the rich and powerful to purchase access and influence unavailable to most citizens. Unfortunately, Citizens United is here to stay without a constitutional amendment or an overruling by the court, neither of which is very likely.

But it’s still possible for the rest of the country to move past the court’s naïve and inadequate view of corruption. Congress could amend criminal corruption laws to expand their scope and overturn the results in Sun-Diamond, Skilling and McDonnell. It could increase funding for enforcement of the Ethics in Government Act and increase the penalties for filing a false financial disclosure form (or failing to file one at all). Beefed up disclosure regulations could make it more difficult for officials to hide financial interests and could make it clear there are no disclosure exceptions for enormous gifts of “personal hospitality,” contrary to what Justice Thomas claims he believed. And Congress could pass legislation like the proposed Disclose Act, to require transparency regarding who is behind political donations and spending.

Congress so far has shown little interest in passing such reforms. But that’s where the remedy lies. It’s time for Congress to act.

In his Citizens United dissent, Justice Stevens observed, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” That’s exactly how it now appears to the public — and that applies to Supreme Court justices as well as to politicians.

Randall D. Eliason is the former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia and teaches white-collar criminal law at George Washington University Law School. He blogs at Sidebarsblog.com.

 Washington Post, Senate Republicans blast judge during hearing over Clarence Thomas’s 2011 ethics review, Tobi Raji, May 18, 2023 (print ed.). Senate Republicans clashed Wednesday with a federal judge, right, who voiced concerns about the transparency of a 2011 ethics review of Supreme Court Justice Clarence Thomas during a judiciary subcommittee hearing.

Sen. John Kennedy (La.), the subcommittee’s top Republican, slammed the hearing as being part of a “perpetual political carousel” that makes him “want to gag” and questioned Judge Mark L. Wolf's credibility as a witness.

“For the last dozen years, a lone federal judge, who is with us today, has been obsessed with complaining that the judicial conference got it wrong,” Kennedy, left, said in his opening remarks. “Judge Wolf wasn’t getting his way from the head of the judicial conference or from Chief Justice Roberts himself.”

Several Democrats, including Sen. Richard J. Durbin (D-Ill.), chairman of the Senate Judiciary Committee who sat in for Wednesday’s hearing, came to Wolf’s defense, arguing that the hearing is not a “witch hunt” but an attempt to “rescue the reputation of the court.”

Sen. Sheldon Whitehouse (D-R.I.), right, chairman of the subcommittee that oversees the federal courts, convened the hearing after new reporting revealed that Wolf had expressed concerns more than a decade ago about how a committee of federal judges was handling a review of complaints alleging that Thomas had flouted financial disclosure rules. The financial disclosure committee ultimately concluded that Thomas had not willfully committed any wrongdoing.

Wolf, shown at left in a file photo, took issue with the transparency of the review. “The manner in which the Judicial Conference has interpreted and implemented the Financial Disclosure statutes has been shrouded in secrecy,” Wolf wrote in his opening statement.

Wednesday’s hearing is Whitehouse’s latest attempt to examine the inner workings of the federal courts’s policymaking body following new revelations about the high court’s longest-serving justice. “Congress has a role in making sure that our courts are administering federal ethics fairly and as intended. If they aren’t, we need a robust record of what has gone wrong and what new laws might be needed to fix it,” Whitehouse said in his opening remarks.

When a justice or judge is accused of falsifying or omitting information from their financial disclosure report, the Judicial Conference’s Committee on Financial Disclosure launches a probe that could culminate in a referral to the attorney general.

Bloomberg News revealed this month that Wolf believed the judicial conference, of which he was a member at the time, couldn’t exercise this authority because the financial disclosure committee hadn’t informed the conference what those complaints were.

Thomas was under fire in 2011 for not disclosing his wife’s employers and travel paid for by Dallas billionaire Harlan Crow.

The revelations drew condemnations from Democrats and court transparency advocates, who pressed the judicial conference to investigate Thomas. The late Rep. Louise M. Slaughter (N.Y.) and 19 other Democrats signed a September 2011 letter asking the judicial conference to refer the matter to the Justice Department.

The conference referred the complaints to the 16-member financial disclosure committee, which was chaired by Judge Bobby R. Baldock at the time and then by Judge Joseph McKinley, the chief judge of the western district of Kentucky, who succeeded him later that year. The committee is responsible for ensuring compliance with the Ethics in Government Act.

Wolf, who said he hadn’t seen the 2011 letters, criticized the committee’s failure to share information about the allegations with the conference.

“This concerned me because the issues raised by the letters were serious,” Wolf wrote. “Such information would have afforded me and the other members of the Conference the opportunity to discuss and decide whether there was reasonable cause to believe Justice Thomas had willfully violated the Act and, if so, to make the required referral to the Attorney General.”

The financial disclosure committee cleared Thomas and, instead, opted to amend its internal process for reviewing ethics complaints.

Now after a justice or judge is accused of violating financial disclosure rules and a member of the committee has reviewed the accusations made against them, a referral is made to the subcommittee on compliance. The subcommittee reviews the allegations and the reviewing judge’s findings, and issues a recommendation to the full committee about whether to accept that judge’s assessment. The financial disclosure committee must also now report the number and nature of the complaints — as well as the action taken — to the full conference.

The committee will follow these steps when reviewing complaints about Thomas.

Whitehouse and Rep. Hank Johnson (D-Ga.) asked the judicial conference to refer Thomas to Attorney General Merrick Garland for an investigation after ProPublica revealed last month that Crow took Thomas on lavish vacations and purchased three properties in Savannah, Ga., from him and his relatives for about $133,000, including the house where the justice’s mother lives.

Thomas did not disclose the transaction on his annual financial report, which requires disclosure of any sale or purchase of property over $1,000. He also did not report the trips with Crow.

Since then, new reporting has revealed that Conservative judicial activist Leonard Leo paid Virginia “Ginni” Thomas, wife of Clarence Thomas, tens of thousands of dollars in consulting work through a nonprofit. Additional ProPublica reporting has revealed that Crow also paid the tuition of the justice’s grandnephew for two private boarding schools.

If the body has “reasonable cause” to believe Thomas willfully ignored ethics rules, it will vote to refer the matter to Garland. Ten votes are needed for a referral.

 Washington Post, Opinion: Two GOP senators smear a witness to defend Clarence Thomas, Ruth Marcus, right, May 19, 2023 (print ed.). Mark L. Wolf has spent his career fighting against corruption and for the rule of law — as a public corruption prosecutor, as a federal judge, as a crusader against international kleptocracy. For that, at a hearing on judicial ethics this week, he was rewarded with some of the most shameful treatment in memory by a pair of Republican senators seemingly more intent on smearing the messenger and defending Supreme Court Justice Clarence Thomas than on exercising their constitutional oversight responsibilities.

The episode says far more about the reflexively partisan nature of the current Congress and the character of the senators — John Neely Kennedy of Louisiana and Mike Lee of Utah — than it does about Wolf.

As a young lawyer during the Ford administration, Wolf served as special assistant to two iconic figures, both Republicans — then-Deputy Attorney General Laurence Silberman, later a federal appeals court judge, and Attorney General Edward Levi — as the department struggled to recover its bearings after the Watergate scandal.Wolf led the public corruption unit at the U.S. attorney’s office in Boston, securing more than 40 convictions, including of officials close to Mayor Kevin White, a Democrat.

Named to the federal bench by Ronald Reagan in 1985, he exposed the FBI’s use of organized crime figure James “Whitey” Bulger as an informant and how it protected Bulger and an associate as they committed murder and tipped Bulger off so that he could flee when he was about to be indicted. Now a senior judge, Wolf, 76, has campaigned for creation of an international anti-corruption court. As it turns out — and this was the subject of his testimony before a Senate Judiciary subcommittee — Wolf was also briefly a thorn in the side of the Judicial Conference of the United States a dozen years ago, during an earlier ethics episode involving Thomas. At the time, Wolf was serving on that policymaking body of the federal judiciary, which reviews, or is supposed to review, financial disclosure reports by federal judges, including Supreme Court justices.

The Post's View: What Congress can do, right now, about Justice Thomas

To call the operations of the Judicial Conference opaque is an understatement. When I asked a few weeks back for the names of the judges, past and present, on the financial disclosure committee, I was told that was not public information. (It was released this week in a letter to Sen. Sheldon Whitehouse (D-R.I.), who chaired Wednesday’s hearing.)

Wolf’s experience, first reported by Bloomberg News’s Zoe Tillman, was similarly frustrating. In 2011, the Judicial Conference received complaints that Thomas had violated financial disclosure laws by failing for years to identify the sources of income received by his wife, Virginia “Ginni” Thomas. The justice, who had previously reported such information, said he had misunderstood the filing instructions and amended years’ worth of forms. Other stories and complaints followed, including about Thomas’s relationship with conservative donor Harlan Crow — sound familiar? — and whether he had failed to report travel and hospitality provided by Crow and the Federalist Society.

So, Wolf began to ask questions, and stir up trouble: Why were members of the Judicial Conference not informed of the complaints or their disposition? How did the financial disclosure committee determine that Thomas’s conduct did not trigger a referral to the Justice Department under the terms of the Ethics in Government Act? (The law provides that the conference “shall refer to the Attorney General” when there is “reasonable cause to believe” the judge “has willfully failed to file” required information.)

The powers that be put Wolf off. He kept pushing. In the end, the Judicial Conference simply waited Wolf out — his term expired before the matter could be raised at a meeting.

As Wolf explained in his prepared remarks, “It is unfortunately relevant to consider these events today. The [Ethics in Government] Act only performs its vital function if the Conference understands and properly performs its role. I believe that in 2011 and 2012 it did not.” Despite allegations from Congress and the public, the financial disclosure committee “did little to nothing for at least a year.” Its process was “opaque,” failing to disclose the allegations and its response to other members of the conference.

Finally, Wolf said, the committee applied “the wrong standard,” deciding for itself whether Thomas’s violations were willful rather than whether there was a “reasonable cause” to refer the matter.

Maybe that’s right, maybe not. But it seems like a reasonable, and important, point to consider — if you were a lawmaker weighing whether the existing financial disclosure and other ethics rules need to be revised.

This turns out to be a big “if.” Kennedy and Lee came out swinging — at Wolf. Their goal wasn’t to discuss ethics, it was simply to discredit the messenger, at any cost.

Kennedy dismissed Wolf as “a lone federal judge ... obsessed with complaining” about Thomas but himself guilty of ethical missteps. He cited discredited information placed in the file of an FBI informant that Wolf, as a federal prosecutor, had leaked evidence to organized crime. He asserted that Wolf had engaged in a “highly unethical move — that’s an understatement” when he declined to recuse himself from a death penalty case after moderating a panel that included a professor who later became a witness in the case. He asserted that Wolf had behaved improperly when he wrote an opinion piece endorsing a code of conduct to cover Supreme Court justices. “Is Judge Wolf planning on launching a super-PAC next?” Kennedy asked.

And then he left the hearing room before listening to a word of Wolf’s testimony. It takes some gall to hurl these accusations at a federal judge and not stick around to hear his response.

Lee then took up the cudgel. “I am concerned by the tone and tenor of this hearing,” he said. “It feels an awful lot like a political witch hunt, which may be in the process of being aided and abetted by a member of the judiciary.”

Greg Sargent: Finally, a bipartisan response to the Clarence Thomas fiasco emerges

When Wolf suggested that Lee’s father, former solicitor general Rex E. Lee, with whom Wolf served in the Ford administration, “would have been very disturbed by the matters that I’ve addressed,” Lee exploded. “Seriously, you’re here attacking a member of the United States Supreme Court on grounds that are frivolous … and you have the audacity to come in and invoke the memory of my late father?” Lee said, raising his voice. “Shame on you, sir.”

Wolf kept his cool. “Some people I respect advised me not to do this … that I would be subject to various unfair attacks,” he said as the hearing drew to a close. “I did it because so many of my colleagues on the bench are deeply disturbed themselves. … So many of us worked so hard to give integrity to the ideal of impartial, equal justice under law, and now that ideal is imperiled.”

Ethics shouldn’t be a partisan issue. I’ve spoken to numerous federal judges, Democratic and Republican nominees alike, and none of them are comfortable with the extent of the benefits that Thomas accepted from Crow.

Much as Kennedy and Lee want to peddle their “everyone does it” line, everyone doesn’t. Other justices have amended their disclosure forms, but Thomas is unique in having to do so repeatedly, only after being called out, and in his pattern of claiming to have misunderstood reporting requirements with which he initially complied.

Wolf’s point, made without hyperbole or insinuation, was less focused on Thomas than on a flawed process that seemed designed to shield the justice’s conduct from appropriate scrutiny. That this observation would expose him to such unhinged attacks suggests how much Republicans fear what a real investigation would uncover.

May 18

Time, Opinion: Why Dianne Feinstein Shouldn't Quit, Philip Elliott, May 18, 2023. The news of ailing Senator Dianne Feinstein’s return to Washington this week crackled through Capitol Hill aides’ messaging apps, journalists’ note-trading clouds, and donors’ inboxes. The oldest member of the Senate had come back to work after almost three months away, recovering from illnessesses that weren’t entirely disclosed during her absence, and she looked markedly older than when she had left. The senior Senator from California was back, but was she really?

There’s nothing Washington likes better than second-guessing, and the Feinstein situation was no different. The 89-year-old icon has made clear, at least for the moment, that she would ignore the merciless drumbeat of calls for her to cede the seat immediately to someone who can discharge the duties more consistently.

As The D.C. Brief wrote last week, Feinstein is giving a masterclass in how to mangle a legacy in what could be its final chapter. And yet, that verdict—along with dozens of others like it emerging from D.C. and around the country in recent days—may have missed the point.

Here’s an updated take that will undoubtedly draw some objections: Feinstein holding the seat until the election next year may be the most responsible thing she can do in case of one possible, albeit unlikely, scenario: a vacancy on the Supreme Court. In indulging her stubbornness, her ego, her paranoia—whatever we want to call it—Feinstein may be what stands between a 6-to-3 conservative Supreme Court majority tilting to a 7-to-2 position, or the key to it shifting back to 5-4. Either of those outcomes would be one liberals may regret not having taken more seriously.

The reason why Feinstein holds all this power is tied to her seat on the Senate Judiciary Committee. Democrats have an 11-to-10 advantage over Republicans on the panel, giving them zero margin for error in advancing President Joe Biden’s nominees for lifetime appointments to federal courts, including the Supreme Court. A tied 10-to-10 vote, at least under the current rules, leaves those nominees potentially stuck in limbo. Whenever she’s absent, Feinstein leaves Democrats on the committee with an insufficient 10 votes.

So one might argue that all that is more reason for Feinstein to resign, and let a younger, healthier Democrat take over her spot on the committee. But that’s not what would be guaranteed to happen. Even if Feinstein were to leave her seat early, allowing California Gov. Gavin Newsom to appoint an interim lawmaker until after the 2024 election, there is nothing ensuring that that successor could be the 11th vote on Judiciary. Committee assignments are part of the start of every Congress, and changes are subject to 60 votes if some lawmakers object and demand a recorded vote. That means 10 Republicans would have to allow Democrats to either send Feinstein’s replacement or another lawmaker into that role. There is scant evidence that Republicans would accede to that request.

Need proof? In April, the Senate considered Feinstein’s request that she be allowed to step away from Judiciary for a beat, and to allow another Democrat to take her seat. The effort, clearly heading to defeat, wasn’t even put to a floor vote. Even in a body known for its cordiality across party lines, Republicans saw the ability to confirm nominees to lifetime gigs in robes and wielding gavels as more important than courtesy to an ailing colleague. “We’re not going to help the Democrats with that,” Republican Sen. Joni Ernst of Iowa said.

Fellow Republican Sen. Mitt Romney of Utah was even more transparent about his party’s intentions: “I don’t think Republicans are going to lift a finger in any way to get more liberal judges appointed, so whether she’s resigned or leaves temporarily from the Judiciary Committee, I think we will slow walk any process that makes it easier to appoint more liberal judges,” he said.

Bad juju? Arguably. Good politics? Probably, especially if you’re a partisan wearing a red jersey.

By an objective measure, Feinstein’s best days are behind her. She made a name for herself as a fierce advocate for her ideals, an independent mind who famously defied the intelligence agencies and a President from her party. Yet Feinstein has been coasting on her reputation for some time. Even her biggest defenders will acknowledge she has missed a beat, and her friends—especially her female ones, to whom she has been a role model and mentor—have found her brushback frustrating. Her ability to effectively advocate for the state of California is questionable.

Feinstein’s choice is hers alone. While the 25th Amendment provides a mechanism from removing an unfit President—a process considered by Donald Trump’s own Cabinet after the Jan. 6, 2021, insurrection—there is nothing that provides for the ousting of a sitting Senator for incapacitation. Of the 15 Senators in history to be booted from their gigs, 14 of them were Confederate supporters and the final one was for treason. The last time Senators even considered such moves was in 1995, and Sen. Bob Packwood resigned in the face of abuse of power and sexual misconduct allegations. (He later found redemption as a high-powered lobbyist.)

For more than a year, the rumble about Feinstein’s age and fitness in the job has been growing. When she was hospitalized in February for shingles, Democrats accepted that they were in a holding pattern until Feinstein could recover and resume her unapologetic pursuit of an agenda she sees as righteous.

But Feinstein, outwardly, hasn’t seemed to recover. Her return came via wheelchair, her face frozen, and her mind seemingly distracted. It has now come out that her shingles has spread to her face and neck, leaving her vision and balance impaired. Her face is, for now, paralyzed. Swelling in her brain brought on by post-shingles encephalitis could lead to difficulties walking, talking, remembering, or sleeping.

When she met with reporters on Tuesday, after casting a vote while standing on her own, she appeared—at best—confused. When a reporter asked how she was being welcomed back by colleagues, she said she had never been away. “No, I haven’t been gone,” she said. “You should follow the—I haven’t been gone. I’ve been working,” she continued. So working from home, then? “No, I’ve been here. I’ve been voting,” she said. “Please. You either know or don’t know.”

Clearly, this is not serving Feinstein’s legacy well, at least not at the moment. But there is an argument—a cynical, craven, dark one, to be fair—that can be made that Feinstein is playing the long game. Should an opening on the Supreme Court come to pass, a Feinstein-free Senate may not be able to do anything until 2025. That could push that decision beyond Biden’s reach and potentially into the hands of a Republican President should Biden lose his re-election bid. (Remember: Senate Republican Leader Mitch McConnell held up Barack Obama’s pick for the high court, Merrick Garland, for 293 days.) The 2024 Senate map is about as hostile for Democratic incumbents as we’ve seen in some time, meaning their continued control of the chamber is far from assured, too.

To be clear, no one expects a Supreme Court retirement is imminent. The three Democratic-nominated Justices range from ages 52 to 68, and the six Republican-tapped ones—ages 51 to 74—are expected to stay in office until they can have a GOP President to nominate their successor. The Supreme Court’s average age right now is 62 years old, but the unexpected is what roils Washington.

So it comes down to whether Democrats can quiet their churn about a less-than-lion Feinstein in the seat in case they can get a high court pick and Republicans hold the line, or whether they sabotage themselves in pursuit of doing what they see as the right thing. The record here should give Democrats little reason to show swagger.

Republican House Congressman George Santos (R-NY) is shown above in both an official photo and a mug shot.

New York Times, House Republicans Stall Effort to Kick George Santos Out of Congress, Michael Gold, May 18, 2023 (print ed.). Democrats tried to force a vote to expel Mr. Santos, a Republican of New York who was indicted last week. But Republicans pushed the matter to the House Ethics Committee.

House Republicans on Wednesday repelled an effort by Democrats to force a vote on expelling Representative George Santos of New York, who was charged last week in a 13-count federal indictment covering wire fraud, unlawful monetary transactions, stealing public funds and lying on financial disclosures.

Republicans voted along party line — 221 to 204, with seven Democrats voting “present” — to refer the resolution to expel Mr. Santos to the House Ethics Committee, which has been investigating Mr. Santos’s finances and campaign activity for months.

The measure to expel Mr. Santos, introduced by Representative Robert Garcia, a Democrat of California, was unlikely to succeed in the House, where it would have required a two-thirds supermajority to pass. Republicans hold a majority so thin that Mr. Santos’s vote remains crucial, reducing the political incentive for them to support his ouster.

Indeed, by delaying the vote, House Republicans — including some who have called on Mr. Santos to resign — avoided having to commit to a firm position on his behavior. But their actions also may be construed as a tacit endorsement of Mr. Santos’s remaining in Congress as he faces ethical and legal inquiries.

Washington Post, Analysis: The curious question of the alleged $2 million pardons, Philip Bump, May 18, 2023 (print ed.). The allegation comes in a lawsuit filed this week by Noelle Dunphy, a woman who worked for former New York mayor Rudy Giuliani from 2019 until 2021. It reads as follows:

“[Giuliani] asked Ms. Dunphy if she knew anyone in need of a pardon, telling her that he was selling pardons for $2 million, which he and President Trump would split.”

If she did, the allegation continues, she should “refer individuals seeking pardons to him, so long as they did not go through ‘the normal channels’ of the Office of the Pardon Attorney” because those communications would otherwise be subject to Freedom of Information Act requests.

This is a serious claim that, given the implications for former president Donald Trump and his bid for the 2024 Republican presidential nomination, is worth considering in the context of what we know.

Dunphy’s lawsuit spans 70 pages, most of which articulate a slew of other allegations about Giuliani. It’s an escalation of a complaint issued in January, asking for $3.1 million in unpaid wages, punitive damages and legal fees, among other things. The new suit, though, goes further. Now seeking $10 million, it includes detailed allegations of abuse and harassment by Giuliani that are walked through on a nearly day-to-day basis.

In a statement to reporters, Giuliani’s attorneys said that their client “unequivocally denies the allegations raised by Ms. Dunphy,” in addition to attempting to cast doubts on her credibility by including a pejorative quote from a former boyfriend.

It’s worth noting that in addition to screenshots of alleged text message exchanges between Giuliani and Dunphy, the lawsuit also includes numerous references to conversations between Dunphy and Giuliani having been recorded. That allegedly includes a recording of Giuliani consenting to being recorded by Dunphy (though New York, where most of the alleged interactions occurred, requires only that one party consent to being recorded). It also allegedly includes Giuliani making disparaging comments about Jewish, Black and Hispanic people.

But back to the allegations about the pardons.

The allegation that Giuliani was offering pardons for $2 million has been made before. In January 2021, shortly before Trump left office, the New York Times reported that former CIA officer John Kiriakou had been “told that Mr. Trump’s personal lawyer Rudolph W. Giuliani could help him secure a pardon for $2 million.” Kiriakou rejected the request, but an associate worried about the legality of such an offer tipped off the FBI. Kiriakou was not granted a pardon.

The Times’s report on the small economy that sprung up around Trump’s pardon process spurred a request from Rep. Raja Krishnamoorthi (D-Ill.), right, to the Justice Department.

“I am writing with grave concern following recent reports that President Trump intends to issue as many as 100 pardons in his final day in office at the same time that his close associates have been selling access to the President to those seeking clemency for thousands of dollars and potentially far more,” Krishnamoorthi wrote to acting attorney general Jeffrey A. Rosen. A representative for Krishnamoorthi’s office told The Washington Post on Wednesday that he didn’t believe the congressman had received a response — in part because the letter was sent on Jan. 19, 2021, the day before President Biden’s inauguration and Rosen’s departure.

The letter also referred to another investigation into the pardon process revealed in a court filing the previous month.

“The Justice Department is investigating a potential crime related to funneling money to the White House or related political committee in exchange for a presidential pardon, according to court records unsealed Tuesday in federal court,” CNN’s Katelyn Polantz reported in December 2020. Polantz pointed to details in a heavily redacted court document.

It suggests that, in reviewing material collected from a number of electronic devices, investigators found emails suggesting “a related bribery conspiracy scheme, in which [redacted] would offer a substantial political contribution in exchange for a presidential pardon or reprieve of sentence.” Note that this is different from what’s alleged about Giuliani; here, the court filing notes, the promise was for “anticipated future substantial political contributions.”

May 15

New York Times, Supreme Court to Consider South Carolina Voting Map Ruled a Racial Gerrymander, Adam Liptak, May 15, 2023. A unanimous three-judge panel found that a congressional voting district anchored in Charleston, S.C., violated the Constitution’s equal protection clause.

The Supreme Court said on Monday that it would decide whether a congressional voting district in South Carolina should be restored after a lower court struck it down as an unconstitutional racial gerrymander.

A unanimous three-judge panel of the Federal District Court in Columbia, S.C., ruled in January that the state’s First Congressional District, drawn after the 2020 census, violated the Constitution by making race the predominant factor.

The district, anchored in Charleston, had elected a Republican every year since 1980, with the exception of 2018. But the 2020 race was close, with less than one percentage point separating the candidates, and Republican lawmakers “sought to create a stronger Republican tilt” in the district after the 2020 census, the panel wrote.

The lawmakers achieved that goal, the panel found, in part by the “bleaching of African American voters out of the Charleston County portion of Congressional District No. 1.”

The new House map moved 62 percent of Black voters in Charleston County from the First District to the Sixth District, a seat that Representative James E. Clyburn, right, a Black Democrat, has held for 30 years.

The move helped make the new First District a Republican stronghold. In November, Nancy Mace, below left, the Republican incumbent, won re-election by 14 percentage points.

Republican lawmakers acknowledged that they had redrawn the First District for partisan gain. But they said they had not considered race in the process.

The panel ruled that the district’s boundaries must be redrawn before future elections are held. But the panel rejected challenges to two other House voting districts, saying that civil rights groups had failed to demonstrate that the districts had been predominantly drawn to dilute Black voting power.

The Supreme Court has said that lawmakers can take race into account in drawing voting districts to comply with the Voting Rights Act but cannot make it the predominant factor. That principle, rooted in the Constitution’s equal protection clause, is often invoked to limit the creation of districts that empower minority voters.

In the new case, Alexander v. South Carolina State Conference of the N.A.A.C.P., No. 22-807, the challenge came from the opposite direction, saying that the map hurt Black voters by moving them from one congressional district to another.

The Supreme Court will soon decide whether to allow a congressional map drawn by Republican lawmakers in Alabama. A lower court had said the map diluted the power of Black voters, violating the Voting Rights Act. The South Carolina case poses different questions, centered on the Constitution’s equal protection principles.

In their Supreme Court appeal, South Carolina Republicans argued that the panel should have presumed that they had acted in good faith, as required by Supreme Court precedent, and analyzed the district as a whole.

“The result,” the lawmakers wrote, quoting from an earlier decision, “is a thinly reasoned order that presumes bad faith, erroneously equates the purported racial effect of a single line in Charleston County with racial predominance across District 1, and is riddled with ‘legal mistakes’ that improperly relieved plaintiffs of their ‘demanding’ burden to prove that race was the ‘predominant consideration.’”

The challengers, represented by the American Civil Liberties Union and the N.A.A.C.P. Legal Defense and Educational Fund, told the justices that “the panel correctly found that race was the gerrymander’s primary vehicle.”

“That predominant reliance on race is impermissible even if mapmakers used race as a proxy for politics,” the challengers’ brief said.

New York Times, Analysis: 16 Crucial Words That Went Missing From a Landmark Civil Rights Law, Adam Liptak, right, May 15, 2023. The phrase, seemingly deleted in error, undermines the basis for qualified immunity, which protects police officers from suits for misconduct.

In a routine decision in March, a unanimous three-judge panel of a federal appeals court ruled against a Texas inmate who was injured when the ceiling of the hog barn he was working in collapsed. The court, predictably, said the inmate could not overcome qualified immunity, the much-criticized legal shield that protects government officials from suits for constitutional violations.

The author of the decision, Judge Don R. Willett (shown at right at his Senate confirmation hearing and at left in a news photo by Gage Skidmore) then did something unusual. He issued a separate concurring opinion to draw attention to the “game-changing arguments” in a recent law review article, one that seemed to demonstrate that the Supreme Court’s entire qualified immunity jurisprudence was based on a mistake.

“Wait, what?” Judge Willett wrote, incredulous.

In 1871, after the Civil War, Congress enacted a law that allowed suits against state officials for violations of constitutional rights. But the Supreme Court has said that the law, usually called Section 1983, did not displace immunities protecting officials that existed when the law was enacted. The doctrine of qualified immunity is based on that premise.

But the premise is wrong, Alexander A. Reinert, a professor at the Benjamin N. Cardozo School of Law, wrote in the article, “Qualified Immunity’s Flawed Foundation,” published in The California Law Review.

Between 1871, when the law was enacted, and 1874, when a government official produced the first compilation of federal laws, Professor Reinert wrote, 16 words of the original law went missing. Those words, Professor Reinert wrote, showed that Congress had indeed overridden existing immunities.

Judge Willett considered the implications of the finding.

“What if the Reconstruction Congress had explicitly stated — right there in the original statutory text — that it was nullifying all common-law defenses against Section 1983 actions?” Judge Willett asked. “That is, what if Congress’s literal language unequivocally negated the original interpretive premise for qualified immunity?”

The original version of the law, the one that was enacted in 1871, said state officials who subject “any person within the jurisdiction of the United States to the deprivation of any rights, privileges or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom or usage of the state to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.”

The words in italics, for reasons lost to history, were omitted from the first compilation of federal laws in 1874, which was prepared by a government official called “the reviser of the federal statutes.”

“The reviser’s error, whether one of omission or commission, has never been corrected,” Judge Willett wrote.

The logic of the Supreme Court’s qualified immunity jurisprudence is that Congress would not have displaced existing immunities without saying so. But Professor Reinert argued that Congress did say so, in so many words.

“The omitted language confirms that the Reconstruction Congress in 1871 intended to provide a broad remedy for civil rights violations by state officials,” Professor Reinert said in an interview, noting that the law was enacted soon after the three constitutional amendments ratified after the Civil War: to outlaw slavery, insist on equal protection and guard the right to vote.

“Along with other contemporaneous evidence, including legislative history, it helps to show that Congress meant to fully enforce the Reconstruction Amendments via a powerful new cause of action,” Professor Reinert said.

Judge Willett, who was appointed by President Donald J. Trump, focused on the words of the original statute “in this text-centric judicial era when jurists profess unswerving fidelity to the words Congress chose.”

Qualified immunity, which requires plaintiffs to show that the officials had violated a constitutional right that was clearly established in a previous ruling, has been widely criticized by scholars and judges across the ideological spectrum. Justice Clarence Thomas, for instance, wrote that it does not appear to resemble the immunities available in 1871.

Professor Reinert’s article said that “is only half the story.”

“The real problem,” he wrote, “is that no qualified immunity doctrine at all should apply in Section 1983 actions, if courts stay true to the text adopted by the enacting Congress.”

Joanna Schwartz, a law professor at the University of California, Los Angeles, and the author of “Shielded: How the Police Became Untouchable,” said that “there is general agreement that the qualified immunity doctrine, as it currently operates, looks nothing like any protections that may have existed in 1871.” The new article, she said, identified “additional causes for skepticism.”

May 14

Supreme Court Justice Clarence Thomas with his wife, Virginia "Ginni" Thomas, arrive for a State Dinner at the White House in September 2019. (Associated Press photo by Patrick Semansky.)

Washington Post, Editorial: What Congress can do, right now, about Justice Thomas, Editorial Board, May 14, 2023 (print ed.). As reports about the financial dealings of Justice Clarence Thomas and his wife, Virginia “Ginni” Thomas, dribble out, the country’s institutions of government appear to be stuck.

The Supreme Court issued a statement suggesting the justices would change little about their ethics rules — or the lack thereof. Members of Congress have introduced bills that would force the court to adopt an ethics code, but Republican opposition probably dooms the legislation, at least for now.

Yet federal lawmakers can still respond usefully, using their oversight powers to clarify the record, examine how existing judicial transparency mandates are working and, in the process, show that justices who skirt disclosure will at least suffer public scrutiny.

The accounts keep coming. ProPublica reported that Justice Thomas repeatedly failed to disclose the extent of his financial relationship with Texas billionaire Harlan Crow, who has bought three properties from the justice and his relatives, took him on numerous luxury vacations and even paid for the justice’s grandnephew to attend expensive private schools.

A Post investigation then found that the conservative judicial activist Leonard Leo arranged to pay Ms. Thomas tens of thousands of dollars for consulting work, insisting that no mention of her name appear on any paperwork related to the transactions.

Lawmakers should probe, firstly, what happened in the Crow matter. What else might Justice Thomas have accepted from Mr. Crow? What was the nature of Mr. Crow’s relationship with Justice Thomas, and how did it develop? This could require testimony from Mr. Crow himself, particularly if Justice Thomas fails to revise his disclosure forms.

There’s more. Did the other justices’ disclosure forms — or what Justice Thomas himself had thought was necessary to disclose in the past — suggest that Justice Thomas’s lack of transparency on the Crow windfall was unusual? Are congressionally mandated disclosure requirements — or their application, overseen by the Judicial Conference — stringent enough? On that score, it would be useful — and legitimate — for lawmakers to hear from Judicial Conference representatives about how justices’ disclosures are scrutinized, and what guidance was in place before a recent clarification about the need to report private jet travel.

The (latest) revelations concerning Ms. Thomas are trickier for Congress to investigate because they involve not a justice but a justice’s spouse, who faces no formal expectation to disclose publicly her business dealings. Yet the unattractive flow of secret money Mr. Leo apparently directed raises questions about when justices should be expected to recuse themselves because of their spouses’ financial arrangements — and about whether the existing disclosure rules, which don’t mandate revealing underlying sources of income, are adequate. The Leo-directed payments went to Ms. Thomas’s firm, Liberty Consulting, but only through a polling company owned by Kellyanne Conway that was in turn working for a Leo-affiliated group, the Judicial Education Project.

In both cases, Congress has a legitimate legislative purpose in asking questions. If not immediately, at some point Congress might attempt to impose transparency, recusal and other rules on the court.

That prospect, even if seemingly remote right now, should jolt the court into action. The justices owe the public the sort of transparency and ethical adherence that virtually every other part of the government follows — and that, by the way, lower courts observe, too. They should show they will right their ethical ship before lawmakers try to fix it from the outside.

May 12

American Oversight, American Oversight Receives Indication That Durham Investigation Has Closed, Staff Report, May 12, 2023. John Durham’s Politicized Investigation — And William Barr’s Role in It.

On Friday, the Department of Justice dropped a key objection to the release of more than 4,500 pages of documents related to the Durham investigation, the Trump-era inquiry into the origins of the FBI’s probe of the Trump campaign’s ties to Russia.

The DOJ had previously withheld the records claiming that their disclosure would interfere with an ongoing law enforcement investigation. Instead of filing an anticipated brief that would have defended the withholdings, the department withdrew its assertion of the “ongoing investigation” exemption — strongly suggesting that the Durham investigation has been closed.

The reversal was announced in a motion filed in the Freedom of Information Act (FOIA) lawsuit American Oversight brought in August 2019 to compel the release of documents related to the Durham inquiry, including communications between Durham and senior Justice Department officials and any communications Durham or DOJ officials may have had with the Trump White House or Congress.

Statement from American Oversight Executive Director Heather Sawyer:

“The Durham investigation remains an alarming example of former President Trump’s weaponization of the Justice Department for his own political ends. Tasked with proving Trump’s allegations of a ‘deep state’ plot against him — and given nearly four years and millions of taxpayer dollars to do so — Durham found no wrongdoing. It’s long past time for the American people to see the full extent of the inquiry’s work and its influences and we look forward to the release of these records.”

American Oversight first requested the records in June 2019, after then Attorney General William Barr had instructed Durham to initiate the politicized investigation of the roots of the inquiry into potential ties between Russia and Trump’s 2016 campaign. That original FBI inquiry ultimately led to the larger investigation headed by Special Counsel Robert Mueller.

Lawyers for the Justice Department had previously argued the government could properly withhold more than 4,500 pages of records and one voicemail audio recording responsive to American Oversight’s requests under the FOIA exemption designed to protect ongoing investigations.

The New York Times reported in January that, after four years, the Durham inquiry was winding down “without uncovering anything like the deep state plot alleged by Mr. Trump and suspected by Mr. Barr.” Records previously obtained by American Oversight through the litigation revealed that Barr met frequently with Durham in the period directly after the Mueller investigation ended — 18 times in seven months — raising questions about potential political interference.

Palmer Report, Opinion: The Durham probe just ended with a whimper, Bill Palmer, right, May 13, 2023. The Durham probe just ended with a whimper. When Bill Barr appointed John Durham to investigate the “origins” of the Trump-Russia investigation, there was a ton of excitement about it among Trump supporters, and a ton of fear and loathing about it from anti-Trump people.

We were supposed to believe that this Durham probe would somehow magically hand Trump the ability to remain in office forever, or allow Trump to con voters into reelecting him in 2020, or something like that. But at the time it seemed pretty clear that Barr was merely appointing Durham as a way of appeasing Trump, who is and always has been so clueless about how politics works, he actually thought Durham could magically help him.

Now it’s reported that the Durham probe has officially closed. It ended up having zero impact on the political or legal landscape, just as we all knew it would. It didn’t change a single mind. It didn’t hand Trump or the GOP a single talking point it could use to change a single mind. This probe was never magically going to help Trump. These people simply do not have magical powers – and the demise of the Durham probe is merely the latest reminder of that.

May 9

U.S. Supreme Court Associate Justice Clarence Thomas, left, and his billionaire friend and benefactor Harlan Crow (file photos).

Politico, Harlan Crow refuses to hand over gift records to Senate Finance, Benjamin Guggenheim, May 9, 2023. Wyden has previously said he would “explore using other tools at the committee’s disposal” should Crow not cooperate with the request.

Billionaire Harlan Crow has refused to comply with a request by Senate Finance Chair Ron Wyden for a complete accounting of Crow’s gifts to Supreme Court Justice Clarence Thomas.

According to Ryan Carey, a spokesperson for Wyden (D-Ore.), the Senate tax chief received an “obstructive letter” from a lawyer for Crow late Monday night declining to answer a series of questions about the billionaire’s financial arrangements with Thomas that Wyden posed to Crow in an April 24 letter.

The Finance Committee is expected to respond shortly. Wyden has previously said he would “explore using other tools at the committee’s disposal” should Crow not cooperate with the request.

Wyden’s next steps could include subpoenaing Crow for the requested records or using a section of the tax code that vests the chairs of Congress’ tax committees with the authority to obtain a private citizen’s tax returns directly from Treasury — a power that House Democrats used last year to publish the taxes of former President Donald Trump.

Meanwhile, Sen. Mike Crapo, the top Republican on the Finance Committee, made it clear Tuesday that he would oppose any such efforts, saying they would “undermine the independence of the Supreme Court and its individual Justices.”

Sen. Mike Lee (R-Utah) and 13 other Republican senators also wrote to Wyden on Monday to express concerns about Wyden’s request to Crow. The GOP lawmakers asserted the demands amounted to intimidation of a private citizen that had the ultimate goal of discrediting Thomas.

“We reject this manufactured ‘ethics crisis’ at the Supreme Court as a ploy to further Democrats’ efforts to undermine public confidence and change the makeup of the Court,” the Republicans wrote.

In his letter, Wyden asked for details on the gifts Crow lavished on Thomas for over two decades, as reported by ProPublica, that included trips aboard the billionaire’s superyacht to Indonesia, New Zealand and Greece and free use of his private jet.

United States Supreme Court Justice Clarence Thomas (l) with his wife, Virginia (Ginni) Thomas (r).

PBS Frontline, Investigative Documentary: Clarence and Ginni Thomas: Politics, Power and the Supreme Court, Directed by Michael Kirk, Produced by Michael Kirk, Mike Wiser and Vanessa Fica, Airs on May 9, 2023. Watch the Trailer.

As controversy erupts around Clarence and Ginni Thomas, FRONTLINE tells the inside story of their path to power. This investigation from veteran filmmaker Michael Kirk and his team traces how race, power and controversy collide in the rise of the Supreme Court justice and his wife and how the couple has reshaped American law and politics.

‘He’s a Bundle of Contradictions’: Why Clarence Thomas Left the Black Power Movement Behind: Clarence Thomas supported the Black Power movement in college, but a scene from "Clarence and Ginni Thomas: Politics, Power and the Supreme Court" shows when the future Supreme Court justice became disillusioned with the movement.

May 8

Chief Justice of the United States John Roberts arrives before President Joe Biden delivers the State of the Union address to a joint session of Congress at the Capitol, Feb. 7, 2023, in Washington. Roberts has declined a request from the Senate Judiciary Committee to testify at a hearing on ethical standards at the court, instead providing the panel with a statement of ethics reaffirmed by the court's justices. (AP pool photo by Jacquelyn Martin.)

Politico, Chief justice must implement strong ethics code, Sen. Dick Durbin says, David Cohen, May 8, 2023 (print ed.). Senate Majority Whip Dick Durbin on Sunday called on Chief Justice John Roberts to create a strong “code of conduct” for the Supreme Court.

“History is going to judge him by the decision he makes on this. He has the power to make the difference,” the Illinois Democrat said on CNN’s “State of the Union.”

Durbin, left, was speaking in response to the latest reporting by ProPublica about what Texas megadonor Harlan Crow has provided Justice Clarence Thomas over the years, including private-school tuition for a relative of Thomas’. (Thomas was the legal guardian of his relative.) Other news organizations have reported of ethical issues involving Thomas and other current members of the nation’s top court.

“I keep calling on Chief Justice Roberts to make a move and say something and solve this problem,” Durbin told host Jake Tapper. “He has the power to do it for the Roberts Court. But other justices can speak out as well.”

Durbin also said “everything is on the table” but didn’t offer any solutions that Congress could undertake on its own to impose policies on ethics for the nation’s highest court. But he said a strong policy is definitely needed to rebuild the court’s credibility.

“We need to change the image of this court. At this point it is at the lowest ebb in history,” Durbin said.

• New York Times, Opinion: The Polite Disdain of John Roberts Finds a Target, Jamelle Bouie
• Associated Press, Supreme Court on ethics issues: Not broken, no fix needed
• Washington Post, Opinion: The aggrieved Justice Alito points fingers but offers no proof, Ruth Marcus
• New York Times, Investigation: How Scalia Law School Became a Key Friend of the Supreme Court, Steve Eder and Jo Becker
• Washington Post, Analysis: What’s next after today’s Supreme Court ethics hearing?  Tobi Raji, Leigh Ann Caldwell and Theodoric Meyer
• Alliance for Justice (AFJ), Advocacy: How To Police a Court That Won’t Police Itself, Rebecca Buckwalter-Poza

 May 4

United States Supreme Court Justice Clarence Thomas (l) with his wife, Virginia (Ginni) Thomas (r).

Washington Post, Investigation: Judicial activist directed fees to Clarence Thomas’s wife, urged ‘no mention of Ginni,’ Emma Brown, Shawn Boburg and Jonathan O'Connell, May 2, 2023. Leonard Leo told GOP pollster Kellyanne Conway to give the spouse of the Supreme Court justice “another $25,000” and to bill the Judicial Education Project.

Conservative judicial activist Leonard Leo arranged for the wife of Supreme Court Justice Clarence Thomas to be paid tens of thousands of dollars for consulting work just over a decade ago, specifying that her name be left off billing paperwork, according to documents reviewed by The Washington Post.

In January 2012, Leo instructed the GOP pollster Kellyanne Conway to bill a nonprofit group he advises and use that money to pay Virginia “Ginni” Thomas, the documents show. The same year, the nonprofit, the Judicial Education Project, filed a brief to the Supreme Court in a landmark voting rights case.

Ultra-right dark money fund-raiser Leonard Leo, center, a major provider of funding for the Federalist Society and other influencers on judicial appointments and decision-making (New York Times photo by T.J. Kirkpatrick).

Leo, a key figure in a network of nonprofits that has worked to support the nominations of conservative judges, told Conway that he wanted her to “give” Ginni Thomas “another $25K,” the documents show. He emphasized that the paperwork should have “No mention of Ginni, of course.”

Conway’s firm, the Polling Company, sent the Judicial Education Project a $25,000 bill that day. Per Leo’s instructions, it listed the purpose as “Supplement for Constitution Polling and Opinion Consulting,” the documents show.

In all, according to the documents, the Polling Company paid Thomas’s firm, Liberty Consulting, $80,000 between June 2011 and June 2012, and it expected to pay $20,000 more before the end of 2012. The documents reviewed by The Post do not indicate the precise nature of any work Thomas did for the Judicial Education Project or the Polling Company.

The arrangement reveals that Leo, a longtime Federalist Society leader and friend of the Thomases, has functioned not only as an ideological ally of Clarence Thomas’s but also has worked to provide financial remuneration to his family. And it shows Leo arranging for the money to be drawn from a nonprofit that soon would have an interest before the court.

In response to questions from The Post, Leo issued a statement defending the Thomases. “It is no secret that Ginni Thomas has a long history of working on issues within the conservative movement, and part of that work has involved gauging public attitudes and sentiment. The work she did here did not involve anything connected with either the Court’s business or with other legal issues,” he wrote. “As an advisor to JEP I have long been supportive of its opinion research relating to limited government, and The Polling Company, along with Ginni Thomas’s help, has been an invaluable resource for gauging public attitudes.”

Of the effort to keep Thomas’s name off paperwork, Leo said: “Knowing how disrespectful, malicious and gossipy people can be, I have always tried to protect the privacy of Justice Thomas and Ginni.”

Leo’s statement did not address questions about whether he had arranged other work for Ginni Thomas or how much money he directed to her in all from the nonprofit.

Conway, who was a senior adviser in the Trump White House, did not respond to messages seeking comment.

• Washington Post, Analysis: A brief timeline of Clarence Thomas, Harlan Crow and ethics questions
• Washington Post, GOP donor paid tuition of Thomas’s grandnephew, report says

May 2

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

Washington Post, Congress can impose a code of conduct on Supreme Court, experts say at hearing, Ann E. Marimow and Robert Barnes, May 2, 2023. Questions over disclosures and potential conflicts have weakened public approval of the justices, prompting new scrutiny.

A Senate hearing on Supreme Court ethics began on a partisan note Tuesday, with Democrats saying they must impose a specific code of conduct for the justices because the court will not do so, and Republicans accusing them of an “unseemly” effort to tar a conservative court.

Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) said a cascade of recent revelations about unreported lavish travel and real estate deals would be unacceptable for an alderman, much less those members of the federal judiciary. But the court “won’t even acknowledge it’s a problem,” Durbin said. “Because the court will not act, Congress must.”

Sen. Lindsey O. Graham (R-S.C.) responded that the focus on Supreme Court ethics is nothing more than an “unseemly effort by the Democratic left” to raise questions about the legitimacy of the court as it has become more conservative. “This is not going to work,” he said.

Chief Justice John G. Roberts Jr. last week turned down an invitation to testify from Durbin (D-Ill.), instead providing a nonbinding “Statement on Ethics Principles and Practices” signed by all nine justices. Roberts suggested his presence at the hearing would threaten the constitutional separation of powers and noted that chief justices have attended such hearings only rarely, and only to address “mundane” topics. None of the justices attended the committee hearing.

Democrats criticized the memo as an insufficient, recycled statement in response to growing ethics concerns and sinking levels of public confidence in the high court. Leading Republican lawmakers, however, have dismissed the recent scrutiny of the justices as an effort to undermine the conservative supermajority that has quickly moved the court to the right.

As the hearing began, two prominent constitutional experts — conservative former federal judge J. Michael Luttig and Harvard legal scholar Laurence Tribe — told the committee in prepared testimony that Congress has the power to impose a code of conduct for Supreme Court justices, but cannot order the high court to come up with rules on its own.

Supreme Court justices discussed, but did not agree on, code of conduct

Federal ethics law requires top officials from all three branches of government, including Supreme Court justices, to file annual financial disclosure forms listing outside income and investments. Lower court judges are also bound by a separate judicial code of conduct that requires judges to avoid “the appearance of impropriety in all activities” and includes a process to investigate allegations of misconduct.

Washington Post, Opinion: The aggrieved Justice Alito points fingers but offers no proof, Ruth Marcus, right, May 2, 2023. Justice Samuel A. Alito Jr. just wants you to know: The leaker didn’t come from the conservative wing of the court. He’s not saying who slipped his draft opinion in the abortion case to Politico, though he has “a pretty good idea” about the leaker’s identity. But he can tell us that the culprit wanted to save Roe v. Wade, not overrule it.

Maybe Alito’s correct, though there are reasons to doubt the certitude he expressed in an astonishing interview with the opinion side of the Wall Street Journal. And maybe “astonishing” isn’t the right word; Alito has shown himself to be thin-skinned and injudicious before.

It’s not as if the Journal interview, with editor James Taranto and Washington lawyer David B. Rivkin Jr., showed us an unknown side of a justice who has been on the court since 2006. “Aggrieved” and “bitter” — and without good reason for either, given that his side is winning — are standard Alito adjectives.

But the Journal interview crosses a line, even for Alito. “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody,” Alito told Taranto and Rivkin. Alito didn’t name names but freely assigned motive. “It was part of an effort to prevent the Dobbs draft … from becoming the decision of the court,” he said. “And that’s how it was used for those six weeks by people on the outside — as part of the campaign to try to intimidate the court.”

Alexandra Petri: At the Supreme Court, our code of conduct is … don’t worry about it

Nice work, because this is the kind of inchoate smear that is impossible to defend against. Alito offered no proof but in the course of doing so almost inevitably implicated liberal justices or one of their clerks. Imagine if one of the liberal justices gave an analogous interview to a liberal publication, saying she had “a pretty good idea” about who let slip the draft opinion in Dobbs v. Jackson Women’s Health Organization. Conservatives would be enraged, and rightly so.

“That’s infuriating to me,” Alito said of the notion that the leak came from Team Conservative. “Look, this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”

Washington Post, Analysis: What’s next after today’s Supreme Court ethics hearing?  Tobi Raji, Leigh Ann Caldwell and Theodoric Meyer, May 2, 2023. Democrats and Republicans are expected to clash this morning over whether the Supreme Court needs an enforceable ethics code during today’s closely watched Senate Judiciary Committee hearing, but the question is what, if anything, might come next.

Many Democrats want to bind the justices to an ethics code similar to the one for federal judges, which Republicans have resisted. The push comes amid reports of possible ethical lapses, including that Justice Clarence Thomas accepted free vacations and air travel for years from an influential Republican megadonor whom Thomas has described as a longtime friend.

Some Democrats are hoping today’s Senate Judiciary Committee hearing will build momentum for legislation.

“I’m hoping that we can foster and generate some bipartisan alignment in terms of what we can do about it, what our options are,” Sen. Cory Booker (D-N.J.), a Judiciary Committee member, told us on Monday.
The committee plans to move forward with legislation that would impose ethics standards on the justices, Judiciary Committee Chairman Richard J. Durbin (D-Ill.) told Bloomberg Television on Monday. Sen. Sheldon Whitehouse (D-R.I.) and Sen. Chris Murphy (D-Conn.) have each proposed bills, while Sens. Angus King (I-Maine) and Lisa Murkowski (R-Alaska) introduced a bipartisan bill last week.

A new wrinkle: J. Michael Luttig, a former federal judge nominated by President George H.W. Bush, and longtime Harvard law professor Laurence Tribe told lawmakers in letters made public Tuesday that they have the power to impose a code of conduct on Supreme Court justices but cannot order the high court to come up with rules on its own, per our colleagues Ann E. Marimow and Robert Barnes.

That’s a bit of a problem for Democrats because most of the plans they have drafted would require the judges to impose new rules while leaving the specifics to them.
From Ann and Bob: Luttig, a conservative, and Tribe, a liberal, “suggested the bills proposed by Whitehouse, King and Murkowski are problematic because they direct a federal court to take on a lawmaking role.”

The witnesses: None of the nine justices will be at today’s hearing. Chief Justice John G. Roberts Jr. declined Durbin’s invitation to testify before the committee, citing concerns about separation of powers and judicial independence in an April 25 letter addressed to the chairman.

The committee will instead hear from five witnesses, including former federal judges Michael B. Mukasey and Jeremy Fogel. Mukasey and Fogel are former members of the Judicial Conference, the policymaking body for the federal courts. Fogel served on the Judicial Conference’s financial disclosure committee, and his testimony could provide insight into how the committee of federal judges responsible for investigating financial disclosure errors and omissions could handle Democrats’ request to investigate Thomas’s financial activities.

That was then, this is now: In the past, some Republicans expressed support for stricter ethics rules or oversight of the justices. Sen. Lindsey O. Graham (R-S.C.), the top Republican on the Judiciary Committee, and Whitehouse warned Roberts in 2021 that Congress could pass legislation tightening financial disclosure requirements for the justices “if the Court does not address the issue itself.”

And in 2006, Sen. Charles E. Grassley (R-Iowa) introduced a bill that would create an inspector general for the judicial branch.

But bipartisan cooperation might not be in the cards now. While Grassley told us he is open to potential ethics legislation, Sen. John Neely Kennedy (R-La.), who sits on the Judiciary Committee, said he believes Democrats are trying to retaliate against conservative justices they don’t agree with. “I don’t believe this is about ethics,” Kennedy said. “They’re trying to undermine its legitimacy.”

More hearings to come? Senate Democrats, meanwhile, are under pressure to do more to hold Thomas accountable.

Rakim Brooks, the president of the Alliance for Justice, a liberal judicial advocacy group, said he’d like to see the committee hold another hearing examining Thomas’s failure to disclose gifts from billionaire Harlan Crow — and he encouraged Democrats to subpoena Roberts, Thomas and Crow if they refuse to testify.

Russ Feingold, the former Democratic senator from Wisconsin who is now president of the American Constitution Society, said he would support subpoenaing Thomas if necessary. But he declined to endorse a subpoena for Roberts, saying he wanted to see how the hearing went.

“I’d like to see if there’s some recognition on the part of the minority party on the committee that this is wrong, and that this needs to be addressed, regardless of your political party,” Feingold said. “And if there is some sense of bipartisanship, then I think it would be easier and more appropriate to pursue a subpoena.”

Alliance for Justice (AFJ), Advocacy: How To Police a Court That Won’t Police Itself, Rebecca Buckwalter-Poza (Aron Senior Justice Counsel at Alliance for Justice), May 1, 2023. Justice Clarence Thomas is increasingly violating the public’s trust with his consistent deceptions and his public conflicts of interest. Worse, he has damaged Americans’ trust in the entire Supreme Court, a pillar of our democracy and the system of checks and balances. There is a problem on the Supreme Court that cannot be ignored; the question is no longer whether action is needed, but which solution to pursue.

At this point, just one-third of Americans have confidence in the Supreme Court — an all-time low since NPR, NewsHour, and the Marist Institute for Public Opinion first started asking respondents. Moreover, 68 percent of all Americans, across party lines, now believe justices should have term limits.

Just a year ago, Justice Thomas himself expressed concern over declining trust in the Supreme Court, complaining, “We can’t be an institution that can be bullied into giving you just the outcomes you want.” And yet there’s no one more responsible in this moment for the plummeting public trust in the Supreme Court than he is. If Justice Thomas truly believed reviving trust in the Court’s impartiality and integrity was important, he’d resign.

Justice Thomas consistently refused to disclose spousal income and conflicts until 2011, stoking public distrust even back then. When he finally amended 13 years of reports, he did so only in a vague and incomplete fashion despite the fact that his wife, lobbyist Ginni Thomas, earns a considerable income from parties with interests before the court. Lest there be any confusion about just how extreme her views are, recall her attempt to persuade former President Donald Trump not to concede the 2020 election amid the January 6 assault on the Capitol .

That’s bad enough. But, as it turns out, there’s more — a lot more. Over the past 20 years Justice Thomas has accepted millions of dollars in gifts, often in the form of private travel, from a far-right billionaire and major political donor, Harlan Crow. Justice Thomas failed to include those gifts and others — like a $19,000 bible — in disclosures mandated by the Ethics in Government Act. Justice Thomas even sold property to Crow, including the home in which his mother lives, and failed to disclose that, too. Then there’s the fact that Crow gave Ginni Thomas $500,000 to found Tea Party group Liberty Central, cementing her status as a far-right political star.

A poll conducted from April 8 through 11 found that more than two-thirds of Americans had already learned of Justice Thomas’s trips footed by Crow. Even then, before the full details emerged, a strong majority (58 percent) of Americans asked disapproved of his accepting luxury trips without disclosing them — including 42 percent who “strongly disapproved.”

A Supreme Court justice has resigned over less — just 54 years ago. Justice Abe Fortas was criticized for agreeing to let a former law partner pay for a portrait of Fortas intended for Yale Law. He also accepted payment from American University for teaching a seminar, not knowing that the funds came from former clients and partners. In addition, although comparable to commitments his colleagues made, Fortas was taking a retainer to advise a non-profit foundation.

Fortas’s detractors included the late, ignoble Senator Strom Thurmond, who argued that “the contributors’ substantial business interests… might well embroil them in litigation before the Court” and place Justice Fortas “in a difficult position.” Justice Fortas credibly denied wrongdoing but chose the integrity of the institution over perceptions of his own. He heeded the Supreme norm, put succinctly by Justice Potter Stewart: “If you think it’s right to resign, you resign.”

Justice Thomas should follow Justice Fortas’s example. If he truly cared about Americans’ faith in the judiciary and avoiding the appearance of impropriety — a maxim even law clerks know to abide by — he would resign. Every day that he refuses to do so compounds the damage he’s already inflicted on the Court.

If he doesn’t step down, Justice Thomas could force legislators to step up — and not just to make the Court come up with its own ethics code. Congress holds the power of impeachment, the remedy for misconduct by officials of all three branches. There’s precedent for the impeachment of a Supreme Court justice under familiar circumstances. In 1804, the House of Representatives impeached Justice Samuel Chase for “[t]ending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering parti[s]an.” Put simply, Chase was impeached for “continually promoting his political agenda on the bench.”

It would have been difficult to imagine the extremes of the Roberts Court’s rejection of ethical norms — and even the law — 40 years ago, never mind 240-plus years ago. Impeachment is the mechanism the Framers built into the Constitution in recognition of the futility of attempting to imagine every possible threat to the integrity of our democratic institutions. Impeachment’s inclusion was also an elegant structural solution to ensure that the Constitution’s most fundamental protections, the system of checks and balances critical to the separation of powers arrangement, would endure over time — ready to deploy against whatever threats to democracy the future might hold.

All of this is to say that when a public official’s actions jeopardize the integrity of our Constitution and democracy in the way Justice Thomas’s have and do, Congress made criminal prosecution a possibility but the Constitution made impeachment a responsibility. Again, far from an anomaly, impeachment of a judge was the intended remedy for misconduct. Two of the first three public officials to be impeached in the United States were jurists.

Although Justice Chase’s impeachment did not result in his removal, later impeachment trials succeeded in holding judges fully accountable. Another federal judge, Halsted Ritter, was convicted and removed from office under an article of impeachment in 1936 for “bring[ing] his court into scandal and disrepute, to the prejudice of said court and public confidence in the administration of justice.” These concerns are just as relevant today than they were then, if not moreso.

By failing to self-regulate, Chief Justice Roberts and his conservative ilk have taken advantage of the trust the Framers and later Congress placed in the Supreme Court. Given the nature of the ongoing revelations proving Justice Thomas has rejected the most fundamental elements of legal ethics, it’s time to draw a bright line: Thomas has gone too far. Justice Clarence Thomas should, to protect our democracy and his own legacy, resign.

Washington Post, DeSantis expands Florida death penalty law, defying U.S. Supreme Court, Tim Craig, May 2, 2023 (print ed.). Gov. Ron DeSantis (R) expanded Florida’s death penalty law on Monday, signing a measure making it a capital crime to rape a child under the age of 12, a law that could set up a future U.S. Supreme Court case.

Vowing Florida “stands for the protection of children,” DeSantis signed the law during a campaign-style event in Titusville, touting his record on issues involving “law and order.”

The measure, which overwhelmingly passed the Florida legislature last month with bipartisan support, gives state prosecutors the option of seeking the death penalty if an adult is found guilty of the sexual battery of a child.

The law will still go into effect even though it is unconstitutional. In 2008, the U.S. Supreme Court issued a 5 to 4 decision that struck down a Louisiana law that allowed a child rapist to be sentenced to death, barring states from executing child sex predators unless they also murdered their victims.

A coalition of social workers and defense attorneys supported the court’s decision then, arguing child sex abuse victims may be less willing to speak up if their assailant was vulnerable to being put to death. They also argued child rapists would be more inclined to kill their victims if they knew they faced capital punishment for their crimes, according to the Death Penalty Information Center.

DeSantis is expected to seek the 2024 GOP nomination for president and has used Florida’s ongoing legislative session to define his agenda for the state and the nation. He has argued that the Supreme Court erred in its decision because it failed to take into account the trauma that child sex victims and their families endure.

DeSantis said Monday that Florida is prepared to defend its law and place it back before the nation’s highest court for consideration.

April

April 30

Ultra-right dark money fund-raiser Leonard Leo, center, a major provider of funding for the Federalist Society and other influencers on judicial appointments and decision-making (New York Times photo by T.J. Kirkpatrick).

New York Times, Investigation: How Scalia Law School Became a Key Friend of the Supreme Court, Steve Eder and Jo Becker, April 30, 2023. George Mason University’s law school cultivated ties to justices, with generous pay and unusual perks. In turn, it gained prestige, donations and influence.

In the fall of 2017, an administrator at George Mason University’s law school circulated a confidential memo about a prospective hire.

Just months earlier, Neil M. Gorsuch, below left, a federal appeals court judge from Colorado, had won confirmation to the Supreme Court seat left vacant by the death of Antonin Scalia, the conservative icon for whom the school was named. For President Donald J. Trump, bringing Judge Gorsuch to Washington was the first step toward fulfilling a campaign promise to cement the high court unassailably on the right. For the leaders of the law school, bringing the new justice to teach at Scalia Law was a way to advance their own parallel ambition.

“Establishing and building a strong relationship with Justice Gorsuch during his first full term on the bench could be a game-changing opportunity for Scalia Law, as it looks to accelerate its already meteoric rise to the top rank of law schools in the United States,” read the memo, contained in one of thousands of internal university emails obtained by The New York Times.

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.

By the winter of 2019, the law school faculty would include not just Justice Gorsuch but also two other members of the court, Justices Clarence Thomas, below right, and Brett M. Kavanaugh — all deployed as strategic assets in a campaign to make Scalia Law, a public school in the Virginia suburbs of Washington, a Yale or Harvard of conservative legal scholarship and influence.

The law school had long stood out for its rightward leanings and ties to conservative benefactors. Its renaming after Justice Scalia in 2016 was the result of a $30 million gift brokered by Leonard Leo, prime architect of a grand project then gathering force to transform the federal judiciary and further the legal imperatives of the right. An ascendant law school at George Mason would be part of that plan.

Since the rebranding, the law school has developed an unusually expansive relationship with the justices of the high court — welcoming them as teachers but also as lecturers and special guests at school events. Scalia Law, in turn, has marketed that closeness with the justices as a unique draw to prospective students and donors.

The Supreme Court assiduously seeks to keep its inner workings, and the justices’ lives, shielded from view, even as recent revelations and ethical questions have brought calls for greater transparency. Yet what emerges from the trove of documents is a glimpse behind the Supreme Court curtain, revealing one particular version of the favored treatment the justices often receive from those seeking to get closer to them.

April 29

Washington Post, Alito thinks he knows who Dobbs leaker is — and says it’s not a conservative, Robert Barnes, April 29, 2023 (print ed.). Politico published Justice Alito's draft opinion, which ultimately overturned Roe v. Wade, a year ago. Alito, shown above in a file photo, agrees the court does not have evidence sufficient to publicly accuse anyone of leaking the draft.

Justice Samuel A. Alito Jr. said in an interview earlier this month that he has a “pretty good idea” who leaked his draft Supreme Court opinion that overturned Roe v. Wade and its constitutional right to abortion last year, but that neither he nor the court can prove it.

The leak rocked the Supreme Court and its tradition of secrecy involving unreleased opinions. After a months-long investigation, Supreme Court Marshal Gail Curley (shown in a file photo) said in January that the court could not determine with certainty “the identity of any individual who may have disclosed the document or how the draft opinion ended up with Politico.”

In an April 13 interview with a Wall Street Journal editorial editor and a private lawyer active in conservative causes, Alito agreed that Curley did not have evidence sufficient to publicly accuse anyone of leaking his draft opinion in Dobbs v. Jackson Women’s Health Organization.

“I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody,” Alito said, according to the story published online Friday. He said he was sure the leak “was a part of an effort to prevent the Dobbs draft … from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside — as part of the campaign to try to intimidate the court.”

Alito said the theory that the draft was leaked by someone on the right to lock in the five votes necessary to overturn Roe “is infuriating to me.”

“Look, this made us targets of assassination,” Alito told his interviewers. “Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”

Alito made similar statements last fall at an event at the conservative Heritage Foundation. In the interview with the Journal, Alito noted that last June an armed man was arrested outside the home of Justice Brett M. Kavanaugh. The man has pleaded not guilty to charges of attempted assassination and is awaiting trial.

Alito says leaker made Supreme Court majority targets

“It was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us,” Alito told James Taranto, editorial features editor for the Journal, and David B. Rivkin Jr., a lawyer active in conservative causes. Rivkin frequently writes for the Journal’s opinion pages, and has helped lead the legal challenge to the Affordable Care Act.

Alito added that he does not feel “physically unsafe, because we now have a lot of protection.” He said he is driven around “in basically a tank, and I’m not really supposed to go anyplace by myself without the tank and my members of the police force.”

Alito declined to answer questions about Justice Clarence Thomas, the interviewers wrote. Thomas has been under fire after ProPublica reported that he accepted extravagant vacations, private jet travel and gifts from his billionaire friend and Republican donor Harlan Crow, who also bought the justice’s childhood home in which his mother continues to live. Thomas did not report the expenditures on his disclosure forms, which are supposed to provide transparency about potential ethical conflicts.

Without commenting on Thomas, Alito said he believes that reports about alleged ethical violations by justices are attempts to damage the court’s credibility now that conservatives are firmly in control. “We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us,” he said.

“And then those who are attacking us say, ‘Look how unpopular they are. Look how low their approval rating has sunk.’” Alito said. “Well, yeah, what do you expect when you’re — day in and day out, ‘They’re illegitimate. They’re engaging in all sorts of unethical conduct. They’re doing this, they’re doing that’?”

April 28

Alliance for Justice (AFJ), AFJ Joining Senators for Tuesday Supreme Court Ethics Press Conference, Staff Report, April 28, 2023. Today Alliance for Justice launched a new five-figure ad campaign in the Washington Post calling on Supreme Court Justice Clarence Thomas to resign.

In recent weeks, there have been multiple revelations about Thomas’s close, undisclosed financial ties to billionaire conservative Harlan Crow that compromise his integrity on the Court. The campaign is in anticipation of a Senate Judiciary Committee hearing about Supreme Court Ethics Reform on Tuesday, May 2, which Chief Justice John Roberts declined to attend to discuss these concerns.

Outside the hearing Tuesday morning, Alliance for Justice will join Sen. Alex Padilla (D-CA), Sen. Sheldon Whitehouse (D-RI), Center for Popular Democracy, People for the American Way, League of Conservation Voters, and others for a press conference calling for immediate ethics reform. The Supreme Court has proven it is either unable or unwilling to police its own behavior, and AFJ will reiterate our call for Thomas to resign.

As part of AFJ’s ad campaign, both banner ads and a video ad call on Thomas to resign and direct viewers to a landing page with resources about Thomas’s corrupt behavior and how he is undermining the integrity of the Court.

Press conference calling for ethics reform now:  Tuesday, May 2nd, 9:00 AM ET, Lower Senate Park (“Senate Swamp”), 200 New Jersey Ave NW, Washington, DC 20001 WHO:

Sen. Alex Padilla (D-CA)
Sen. Sheldon Whitehouse (D-RI)
Analilia Mejia, co-Executive Director, Center for Popular Democracy
Rakin Brooks, President, Alliance for Justice
Svante Myrick, President and CEO People for the American Way
Katie O’Connor, Deputy Chief Counsel, Demand Justice
Fatima Goss Graves, President and CEO, National Women’s Law Center
Tiffany Muller, President, End Citizens United/Let America Vote
Doug Lindner, Senior Director of Judiciary & Democracy, League of Conservation Voters
Jeniece L. Brock, Policy & Advocacy Director, Ohio Organizing Collaborative
Dylan Hedtler-Gaudette, Government Affairs manager, Project On Government Oversight
Freedom from Religion Foundation

 April 27

Chief Justice of the United States John Roberts arrives before President Joe Biden delivers the State of the Union address to a joint session of Congress at the Capitol, Feb. 7, 2023, in Washington. Roberts has declined a request from the Senate Judiciary Committee to testify at a hearing on ethical standards at the court, instead providing the panel with a statement of ethics reaffirmed by the court's justices. (AP pool photo by Jacquelyn Martin.)

Associated Press, Supreme Court on ethics issues: Not broken, no fix needed, Jessica Grfesko, April 27, 2023. The Supreme Court is speaking with one voice in response to recent criticism of the justices’ ethical practices: No need to fix what isn’t broken.

Associated Press, Appeals court rejects Trump effort to block Pence testimony, Eric Tucker, April 27, 2023. A federal appeals court on Wednesday night moved former Vice President Mike Pence closer to appearing before a grand jury investigating efforts to undo the results of the 2020 presidential election, rejecting a bid by lawyers for former President Donald Trump to block the testimony.

It was not immediately clear what day Pence might appear before the grand jury, which for months has been investigating the events preceding the Jan. 6, 2021, insurrection at the U.S. Capitol and efforts by Trump and his allies to subvert the election outcome. But Pence’s testimony, coming as he inches toward a likely entrance in the 2024 presidential race, would be a milestone moment in the investigation and would likely give prosecutors a key first-person account as they press forward with their inquiry.

The order from the three-judge panel of the U.S. Circuit Court of Appeals was sealed and none of the parties are mentioned by name in online court records. But the appeal in the sealed case was filed just days after a lower-court judge had directed Pence to testify over objections from the Trump team.

The appeal was decided by Judge Gregory Katsas, a Trump appointee, and judges Patricia Millett and Gregory Wilkins, both appointees of former President Barack Obama. It was not clear if lawyers for Trump might ask the entire appeals court to hear the matter.

Pence was subpoenaed to testify earlier this year, but lawyers for Trump objected, citing executive privilege concerns. A judge in March refused to block Trump’s appearance, though he did side with the former vice president’s constitutional claims that he could not be forced to answer questions about anything related to his role as presiding over the Senate’s certification of votes on Jan. 6.

April 26

New York Times, Investigation: Justice Neil Gorsuch sold real estate to the head of a major law firm without disclosing the buyer’s identity, Charlie Savage, April 26, 2023 (print ed.). Experts said that the justice’s disclosure of the sale, which came right after the justice’s appointment, did not violate the law but underscored the need for ethics reforms.

One month after Neil M. Gorsuch, right, was appointed to the Supreme Court in April 2017, he and two partners finally sold a vacation property they had been trying to offload for nearly two years. But when he reported the sale the next year, he left blank a field asking the identity of the buyer.

County real estate records in Colorado show that Brian L. Duffy, the chief executive of Greenberg Traurig, a sprawling law firm that frequently has business before the court, and his wife, Kari Duffy, bought the property.

The buyer’s identity — and Justice Gorsuch’s decision not to disclose it — was reported earlier on Tuesday by Politico. Although experts said that the omission did not violate the law, they added that it underscored the need for ethics reforms given the intensifying scrutiny on financial entanglements at the Supreme Court and renewed calls by Democratic lawmakers for tightened rules.

ProPublica reported this month that Justice Clarence Thomas had not disclosed that he had repeatedly received free travel for lavish vacations and other purposes from a Republican megadonor, Harlan Crow, and that he had sold properties to Mr. Crow in Georgia.

Justice Gorsuch did not break the law by omitting the buyer’s identity, said Stephen Gillers, a New York University professor and specialist in legal ethics. Under a 1978 statute governing financial disclosures, federal judges are not required to disclose who bought property from them.

Gabe Roth, the executive director of Fix the Court, a nonpartisan group that presses for greater transparency and accountability by the justices, agreed that the omission did not violate the law. But he argued that Congress should pass legislation expanding what justices must disclose, including losses from any sales, the nature of partnerships that hold real estate and who buyers are.

In response to a request for his testimony before Congress, Chief Justice John G. Roberts Jr. on Tuesday declined an invitation from Senator Richard J. Durbin, Democrat of Illinois who leads the Judiciary Committee, to speak next week about potential ethics reforms.

In a letter, Chief Justice Roberts included a list of current ethics practices to which he said all justices subscribe. Mr. Durbin said in a statement that the hearing would go forward, expressing surprise that “the chief justice’s recounting of existing legal standards of ethics suggests current law is adequate and ignores the obvious.”

New York Times, Chief Justice Declines to Testify Before Congress Over Ethics Concerns, Abbie VanSickle, April 26, 2023. In an accompanying statement, Chief Justice John Roberts and the other eight justices insisted their current ethical guidelines were sufficient.

Chief Justice John G. Roberts Jr., right, told the Senate Judiciary Committee in a letter released Tuesday evening that he was declining its invitation to testify about ethics rules for the Supreme Court.

In an accompanying statement on ethics practices, all nine justices, under mounting pressure for more stringent reporting requirements at the court, insisted that the existing rules around gifts, travel and other financial disclosures are sufficient.

The chief justice wrote that such appearances before the committee were “exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”

Last week, Senator Richard J. Durbin, Democrat of Illinois and chairman of the committee, invited the chief justice to appear after revelations of unreported gifts, travel and real estate deals between Justice Clarence Thomas and Harlan Crow, a Texas billionaire and Republican donor.

In the letter, Chief Justice Roberts attached a “statement of ethics principles and practices” signed by the current justices and included an appendix of the relevant laws that apply to judicial disclosures.

In the ethics statement, the justices wrote that they aimed to clarify how they “address certain recurring issues” and “to dispel some common misconceptions.” To deal with ethical questions, they look to “judicial opinions, treatises, scholarly articles, disciplinary decisions, and the historical practice of the court and the federal judiciary,” their signed statement said, which added that they could seek advice from colleagues and the court’s legal office.

April 23

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

New York Times, Analysis: Supreme Court Trades Ambition for Prudence in Abortion Pill Ruling, Adam Liptak, right, April 23, 2023 (print ed.). The court’s order ensuring access to mifepristone seemed to vindicate a commitment to leave further questions about abortion to the political process.

It was an interim ruling, and the majority gave no reasons. But the Supreme Court’s order on Friday night maintaining the availability of a commonly used abortion pill nonetheless sent a powerful message from a chastened court.

“Legal sanity prevailed, proving that, at least for now, disrupting the national market for an F.D.A.-approved drug is a bridge too far, even for this court,” said David S. Cohen, a law professor at Drexel University.

Ten months ago, five conservative justices overturned Roe v. Wade, eliminating a constitutional right to abortion that had been in place for half a century. They did so almost as soon as a third Trump appointee arrived, tilting the balance on the bench sharply to the right. All three of the Trump justices were in the majority.

Cynics might be forgiven for thinking that the decision last June, in Dobbs v. Jackson Women’s Health Organization, was a product of raw power. The public reaction was certainly negative, as the court’s approval ratings sank and the decision itself proved deeply unpopular and a political windfall for Democrats.

In his concurrence in Dobbs, Chief Justice John G. Roberts Jr., right, said the majority had abandoned “principles of judicial restraint” at the cost of “a serious jolt to the legal system.” Friday’s order avoided a second jolt.

But the Dobbs decision also made a kind of promise. The majority opinion, written by Justice Samuel A. Alito Jr., said at least seven times that doing away with the right to abortion was an exercise of judicial modesty.

“The authority to regulate abortion must be returned to the people and their elected representatives,” Justice Alito wrote, in a formulation that, with only small variations, was sprinkled throughout the opinion like a refrain.

Friday’s order, for the time being at least, vindicated that promise. The court blocked a sweeping ruling from Matthew J. Kacsmaryk, a federal judge in Texas appointed by President Donald J. Trump more noted for his anti-abortion bona fides than his legal acumen.

His ruling, based on judicial second-guessing of the many scientific studies buttressing the Food and Drug Administration’s approval and regulation of the pill, would have upended a status quo in place for 23 years.

April 21

Associated Press via CBS News, Supreme Court preserves access to abortion pill for now, Michael King, April 21, 2023 (PM). The Supreme Court on Friday granted a request from the Justice Department to leave in place the Food and Drug Administration's approval of a widely used abortion pill, preserving access to the drug and reinstating a number of steps by the agency that made it easier to obtain while legal proceedings continue.

The decision from the court, which has a 6-3 conservative majority, came in the most significant case involving abortion since it overturned Roe v. Wade less than one year ago, a ruling that threw the legal landscape into chaos and led to near-total bans on abortion in more than 12 states. In addition to granting the Justice Department's request for emergency relief, the Supreme Court also approved a similar request from Danco Laboratories, the maker of the abortion drug mifepristone.

Justice Clarence Thomas said he would have denied the emergency applications, and Justice Samuel Alito dissented from the decision, writing that neither the Justice Department nor Danco have shown they are likely to suffer irreparable harm while the appeals process plays out. Alito authored the majority opinion reversing Roe.

The Biden administration and Danco turned to the Supreme Court in the legal battle over mifepristone after a federal judge in Texas suspended the FDA's 23-year-old approval of the drug on April 7, which would have disrupted access to the medication nationwide, including in states where abortion is legal.

"The district court countermanded a scientific judgment FDA has maintained across five administrations; nullified the approval of a drug that has been safely used by millions of Americans over more than two decades; and upset reliance interests in a healthcare system that depends on the availability of mifepristone as an alternative to surgical abortion for women who choose to lawfully terminate their early pregnancies," the Justice Department wrote to the court.

The Biden administration asked the Supreme Court to pause the district court's order and aspects of a federal appeals court decision that limited how late into pregnancy mifepristone could be taken, who could prescribe it, and how it could be dispensed. The U.S. Court of Appeals for the 5th Circuit put on hold the most significant part of the district court's decision — halting the FDA's approval of mifepristone — but blocked the actions by the agency since 2016 that relaxed the rules surrounding the drug.

The appeals court also sped up the Biden administration's appeal of the district court decision, setting arguments for May 17.

• New York Times, Supreme Court Is Expected to Decide on Access to Abortion Pill, Abbie VanSickle and Pam Belluck
• New York Times, The Times is tracking abortion laws in each state. See where bans are in effect.

New York Times, Opinion: This Could Be One of the Most Brazen Attacks on Americans’ Health Yet, Jack Resneck Jr., April 21, 2023 (print ed.). Dr. Resneck, below right, is the president of the American Medical Association.

In their zeal to continue upending abortion access after the overturning of Roe v. Wade, legislators, activists and litigants have pushed increasingly extreme measures that disregard medical science, insert government into the exam room and increase the odds of maternal deaths. Not satisfied with banning abortion in their home states, some lawmakers are trying to restrict access in other states as well — a chilling attempt to intimidate patients and physicians alike.

Against this backdrop, the Supreme Court faces a decision that lays bare the threat to facts, evidence and the health of America’s patients. The case, Alliance for Hippocratic Medicine v. F.D.A. — in which anti-abortion organizations and doctors who have never prescribed the pill mifepristone argue, absurdly, that 23 years ago the F.D.A. did not follow proper protocol in approving it as part of a two-drug regimen for abortion — is one of the most brazen attacks yet against reproductive health.

If the lower courts’ rulings on mifepristone are not reversed entirely, it could also upend the Food and Drug Administration’s drug regulatory process. This would throw our health care system into chaos in ways that extend far beyond the specific fight over mifepristone, a highly effective drug that has been used safely by millions of patients for medication abortions and for miscarriage care for more than two decades.

In seeking to restrict access to abortion across the United States, the plaintiffs in this case have, intentionally or not, seriously jeopardized our nation’s 85-year-old drug regulatory system. We must be cleareyed; upholding any parts of the district court’s dangerous ruling would in all likelihood almost immediately prompt challenges to other longstanding safe and effective F.D.A.-approved drugs that doctors and patients rely on every day.

After three years of politicization fueled by disinformation, this would surely include challenges to many vaccines, including those that reduce the risks of serious illness from Covid-19. We should expect lawsuits against common types of safe and highly effective hormonal birth control, including emergency contraception. Also at risk: drugs used to treat cancer and arthritis that can incidentally affect unexpected pregnancies, drugs to prevent or treat H.I.V., and medications aimed at providing gender-affirming care.

The threat may ultimately include promising drugs and treatments built around stem cell technology to treat Parkinson’s, Alzheimer’s, multiple sclerosis or even more common types of chronic disease, such as diabetes. With ever-growing anti-science aggression, disinformation campaigns and vitriol about all types of medical advancements, there is no telling where the court challenges may lead — perhaps even to widely used drugs now sold over the counter to treat pain, allergies or heartburn that happen to have been studied with fetal stem cells.

This would represent a dangerous and reckless step backward for our country. More people would live sicker, suffer more and die younger while the scientifically proven safe and effective drugs they need remain locked away.

We simply cannot be a country where your access to the care you need is determined by the whims of ideologically driven judges and lawmakers without medical or scientific training. That’s why a dozen of the nation’s leading medical organizations, including the one I head, the American Medical Association, strongly oppose this politically motivated assault on patient and physician autonomy and have filed amicus briefs to make our case.

New York Times, Supreme Court Is Expected to Decide on Access to Abortion Pill, Abbie VanSickle and Pam Belluck, April 21, 2023. The court is likely to weigh in on Friday on whether a commonly used pill, mifepristone, should remain widely available while an appeal moves forward.

The future of a commonly used abortion pill is at the center of a pitched legal battle before the Supreme Court, which is poised for the second time in a year to consider a major effort to severely limit access to abortion.

The court is expected to decide by Friday night whether to grant the Biden administration’s emergency request to maintain the Food and Drug Administration’s approval of the pill, mifepristone, after a lower court limited the availability of the drug while an appeal moves forward.

Justice Samuel A. Alito Jr. had paused the lower court’s ruling, but that freeze is set to expire at midnight. That means the justices are likely to decide before then, although they could extend the deadline or fail to act.

When the justices overturned Roe v. Wade in June, the conservative majority said that the political branch, not the courts, should make decisions on abortion policy. But the issue has quickly made its way back to the Supreme Court, in a case that may have wide-ranging consequences even in states where abortion is legal, as well as for the F.D.A.’s regulatory authority over other drugs.

What’s at stake?

At issue is the availability of mifepristone, part of a two-drug regimen that now accounts for more than half of the abortions in the United States. More than five million women have used mifepristone to terminate their pregnancies in the United States, and dozens of other countries have approved the drug for use.

Federal judges have questioned steps the F.D.A. has taken to expand the drug’s distribution, and the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, imposed significant barriers to access last week, even as it said that it would allow the pill to remain on the market.

Its decision essentially turns back the clock to 2016, when the F.D.A. added a series of guidelines that eased access to the pill. The restrictions would include blocking patients from receiving the drug by mail.

• New York Times, The Times is tracking abortion laws in each state. See where bans are in effect.

April 16

United States Supreme Court Justice Clarence Thomas (l) with his wife, Virginia (Ginni) Thomas (r).

Washington Post, Opinion: Clarence Thomas enters the danger zone, Ruth Marcus, right, April 16, 2023 (print ed.). The matter of Clarence Thomas’s relationship with billionaire Harlan Crow has now entered new territory, treacherous for the justice and the court on which he serves.

Until Thursday’s ProPublica’s report disclosing Crow’s purchase of property owned by Thomas and his family in 2014, the story was about Thomas’s judgment, or lack thereof, in accepting large amounts of luxury travel from the Republican megadonor, and whether he had failed once again to comply with federal financial disclosure rules.

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

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

• The Post's View: Clarence Thomas is proof that the Supreme Court needs reform

Thomas’s relationship with Crow and the accuracy of his financial disclosure reports must now be fully scrutinized by the Judicial Conference of the United States, which oversees the federal judiciary and may refer the matter to the Justice Department for additional action. As Chief Justice John G. Roberts Jr. surely understands, this is a problem not just for Thomas but also for the court and its public legitimacy.

According to the ProPublica report, a company controlled by Crow bought the properties in Savanna

Palmer Report, Opinion: Clarence Thomas should have gotten out while he could, Bill Palmer, right, April 15, 2023.  The headlines of this past week are a good reminder of why Clarence Thomas would have been smart to retire from the Supreme Court right after it came out that his wife was a key January 6th figure. Because he stuck around, the media has kept digging into his past. And the various folks out there who know his dirty secrets are finally coughing them up. This is just the beginning.

We still don’t know if what’s now coming out about Thomas’ corrupt gifts is going to be enough for prosecutors to be able to take him down. There’s a world of difference between something that’s obviously corrupt in the court of public opinion, and something that a jury would actually convict on in a court of law. But more of his corrupt dirty secrets will keep coming out.

Nor for that matter do we have any idea if Ginni Thomas is a criminal target in Jack Smith’s 1/6 probe. Something like that would not become public unless someone who received a subpoena decided to leak it, or something along those lines. It’s very possible she’s a 1/6 criminal target. We can’t count on that saving the day. But we also can’t assume that she’s off the legal hook. Everyone thought Donald Trump was off the legal hook in Manhattan, and he ended up getting indicted on thirty-four felonies.

But even if nothing that’s surfaced thus far is enough to put Clarence or Ginni Thomas in prison, we know there’s more coming. People who spend this many decades living this corruptly don’t just have one dirty donor or one corruption scandal. That’s always just the tip of the iceberg.

Clarence Thomas has presumably remained on the court to put himself in a position to protect his wife against any prosecution. But he’s only making himself and her more vulnerable. Folks out there who know their dirt are going to keep leaking it until he retires and stops harming people.

Prosecutors don’t magically know where to dig for scandals. No one knew this secret corrupt gifts scandal existed, until someone tipped off someone else about where to dig and what to look for. But now prosecutors can (and will) look at it to see if it’s chargeable. It’ll happen with every new Thomas family scandal that emerges going forward.

There is a threshold where his criminal scandals get so bad, he does retire to try to make it all go away. We don’t know if we’ll ever reach that threshold before he croaks. But whether you reach it or not there is always a threshold on these things – something the “it’ll never happen no matter what” crowd doesn’t get.

So the point is to keep ramping up, digging in, exposing his scandals, and – this is crucial – making him the face of the Republican Party. Thomas is a financial criminal and a psychotic oppressor of women’s rights. If Clarence Thomas last that long, he is our 2024 messaging.

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

Washington Post, Clarence Thomas has for years claimed income from a defunct real estate firm, Shawn Boburg and Emma Brown, April 16, 2023. The misstatements are part of a pattern that has raised questions about how the justice views his obligation to report details about his finances to the public.

Over the last two decades, Supreme Court Justice Clarence Thomas has reported on required financial disclosure forms that his family received rental income totaling hundreds of thousands of dollars from a firm called Ginger, Ltd., Partnership.

But that company — a Nebraska real estate firm launched in the 1980s by his wife and her relatives — has not existed since 2006.

That year, the family real estate company was shut down and a separate firm was created, state incorporation records show. The similarly named firm assumed control of the shuttered company’s land leasing business, according to property records.

Since that time, however, Thomas has continued to report income from the defunct company — between $50,000 and $100,000 annually in recent years — and there is no mention of the newer firm, Ginger Holdings, LLC, on the forms.

The previously unreported misstatement might be dismissed as a paperwork error. But it is among a series of errors and omissions that Thomas has made on required annual financial disclosure forms over the past several decades, a review of those records shows. Together, they have raised questions about how seriously Thomas views his responsibility to accurately report details about his finances to the public.

Thomas’s disclosure history is in the spotlight after ProPublica revealed this month that a Texas billionaire took him on lavish vacations and also bought from Thomas and his relatives a Georgia home where his mother lives, a transaction that was not disclosed on the forms. Thomas said in a statement that colleagues he did not name told him he did not have to report the vacations and that he has always tried to comply with disclosure guidelines. He has not publicly addressed the property transaction.

In 2011, after the watchdog group Common Cause raised red flags, Thomas updated years of his financial disclosure reports to include employment details for his wife, conservative activist Virginia “Ginni” Thomas. The justice said at the time that he had not understood the filing instructions. In 2020, he was forced to revise his disclosure forms after a different watchdog group found he had failed to report reimbursements for trips to speak at two law schools.

April 15

United States Supreme Court Justice Clarence Thomas (l) with his wife, Virginia (Ginni) Thomas (r).

Palmer Report, Opinion: Clarence Thomas should have gotten out while he could, Bill Palmer, right, April 15, 2023.  The headlines of this past week are a good reminder of why Clarence Thomas would have been smart to retire from the Supreme Court right after it came out that his wife was a key January 6th figure. Because he stuck around, the media has kept digging into his past. And the various folks out there who know his dirty secrets are finally coughing them up. This is just the beginning.

We still don’t know if what’s now coming out about Thomas’ corrupt gifts is going to be enough for prosecutors to be able to take him down. There’s a world of difference between something that’s obviously corrupt in the court of public opinion, and something that a jury would actually convict on in a court of law. But more of his corrupt dirty secrets will keep coming out.

Nor for that matter do we have any idea if Ginni Thomas is a criminal target in Jack Smith’s 1/6 probe. Something like that would not become public unless someone who received a subpoena decided to leak it, or something along those lines. It’s very possible she’s a 1/6 criminal target. We can’t count on that saving the day. But we also can’t assume that she’s off the legal hook. Everyone thought Donald Trump was off the legal hook in Manhattan, and he ended up getting indicted on thirty-four felonies.

But even if nothing that’s surfaced thus far is enough to put Clarence or Ginni Thomas in prison, we know there’s more coming. People who spend this many decades living this corruptly don’t just have one dirty donor or one corruption scandal. That’s always just the tip of the iceberg.

Clarence Thomas has presumably remained on the court to put himself in a position to protect his wife against any prosecution. But he’s only making himself and her more vulnerable. Folks out there who know their dirt are going to keep leaking it until he retires and stops harming people.

Prosecutors don’t magically know where to dig for scandals. No one knew this secret corrupt gifts scandal existed, until someone tipped off someone else about where to dig and what to look for. But now prosecutors can (and will) look at it to see if it’s chargeable. It’ll happen with every new Thomas family scandal that emerges going forward.

There is a threshold where his criminal scandals get so bad, he does retire to try to make it all go away. We don’t know if we’ll ever reach that threshold before he croaks. But whether you reach it or not there is always a threshold on these things – something the “it’ll never happen no matter what” crowd doesn’t get.

So the point is to keep ramping up, digging in, exposing his scandals, and – this is crucial – making him the face of the Republican Party. Thomas is a financial criminal and a psychotic oppressor of women’s rights. If Clarence Thomas last that long, he is our 2024 messaging.

April 14

U.S. Supreme Court Associate Justice Clarence Thomas, left, and his billionaire friend and benefactor Harlan Crow (file photos).

New York Times, Justice Thomas Failed to Report Real Estate Deal With Texas Billionaire, Abbie VanSickle, April 14, 2023 (print ed.). An investigation by ProPublica revealed a deal worth more than $100,000 between the real estate magnate and the justice.

Justice Clarence Thomas did not disclose that he had sold a series of properties to a longtime conservative donor from Texas in 2014, ProPublica revealed on Thursday.

The transaction is the first known instance of money going directly from the billionaire donor, Harlan Crow, 73, to the justice, in what appears to be a direct violation of disclosure requirements.

United States Supreme Court Justice Clarence Thomas (l) with his wife, Virginia (Ginni) Thomas (r).

The revelation cast greater scrutiny on Justice Thomas, who has long raised eyebrows over questions of conflicts of interest, in part because of the political activism of his wife, Virginia Thomas. The nature of Justice Thomas’s relationship with the real estate magnate has elicited particular attention after ProPublica detailed last week how he accompanied Mr. Crow on lavish trips for nearly 20 years without disclosing them, including island-hopping in Indonesia and staying at Mr. Crow’s 105-acre lakeside retreat in the Adirondack Mountains. The disclosures have fueled calls by Democratic lawmakers and court transparency advocates for the justices to face tighter ethics constraints.

In 2014, a real estate company linked to Mr. Crow bought a single-family home and two vacant lots on a quiet Savannah street, paying $133,363 to Justice Thomas and his family for the property, ProPublica said.

Justice Thomas did not respond to a request for comment. In a statement last week addressing reports of his luxury vacations, the justice said he had been told that he did not need to report the hospitality of good friends.

“Early in my tenure at the court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable,” the justice wrote.

In a statement to The New York Times, Mr. Crow said the purchase was part of his “broader commitment to historical preservation and American education.”

“My intention is to one day create a public museum at the Thomas home dedicated to telling the story of our nation’s second Black Supreme Court justice, who was born in Pin Point, Ga., and later raised in Savannah,” he said.

According to ProPublica, one of Mr. Crow’s companies bought the property from three owners: Justice Thomas, his mother and the family of Justice Thomas’s late brother. After the sale, contractors made a number of improvements to the property, where the justice’s mother still lived.

Advocates pushing for greater transparency at the court said the most recent revelation went well beyond typical social activities between friends.

Senator Sheldon Whitehouse, Democrat from Rhode Island, said in a statement that he would call on the policymaking body for the federal courts to refer Justice Thomas to the attorney general for potential violations of government ethics law.

“The Supreme Court justices are so deeply ensconced in a cocoon of special interest money that they can no longer be trusted to police themselves without proper process,” he said, adding that Chief Justice John G. Roberts Jr., right, should open an ethics investigation into Justice Thomas’s financial ties to Mr. Crow and his “apparent brazen disregard for disclosure laws.”

The net worth of Justice Thomas and his wife is unclear. What is known is pieced together from financial disclosures, which are filed by the justices. His disclosures did not list recent gifts, travel or the land purchase by Mr. Crow. Associate justices like Justice Thomas make an annual salary of $285,400. Chief Justice Roberts makes $298,500.

Ms. Thomas, who goes by Ginni, is well known for her conservative activism.

Her involvement in the push to subvert the 2020 election raised questions over whether Justice Thomas should have recused himself on Supreme Court cases related to the riot. Instead he participated in several cases involving Jan. 6 or the outcome of the 2020 election.

In 2011, the couple came under fire after Common Cause, a watchdog group, criticized the justice for failing to disclose his wife’s income, which was nearly $700,000 over five years at the Heritage Foundation, a conservative think tank. The justice then amended 20 years of filings.

The friendship between Justice Thomas and Mr. Crow dates to the mid-1990s, after Justice Thomas joined the court.

In 2004, The Los Angeles Times documented a number of gifts the justice received from Mr. Crow, including a Bible once owned by the abolitionist Frederick Douglass and a bust of Abraham Lincoln valued at $15,000.

Since then, Justice Thomas stopped reporting gifts and travel, but his relationship with Mr. Crow continued.

Mr. Crow helped finance a library project in Savannah dedicated to the justice. Initially, he anonymously gave $150,000 to renovate a Carnegie Library. It had been the only library in the city that welcomed Black people, and the justice has described the hours he spent there as a child.

In 2011, The Times reported that Mr. Crow had secretly poured millions of dollars into the purchase and restoration of a cannery in Pin Point, where Justice Thomas spent the first six years of his life. The town, in coastal lowlands, was a place where freed slaves built livelihoods by harvesting shrimp, oysters and crabs.

The cannery was transformed into the Pin Point Heritage Museum.

Mr. Crow has long had a foothold in conservative causes. He is a trustee of the George W. Bush Presidential Library Foundation and gave $500,000 to a group that sought to build public support for Mr. Bush’s Supreme Court picks. He also reportedly donated $500,000 when Ms. Thomas founded a Tea Party-related group several years ago.

Since 2006, Mr. Crow has also been a trustee of the Supreme Court Historical Society, a charity that asks for an annual contribution of at least $5,000 to preserve the court’s history and educate the public.

He also has invited the justice to gatherings at Camp Topridge, Mr. Crow’s private Adirondacks resort. A painting there, commissioned by Mr. Crow, shows the justice smoking cigars alongside Leonard A. Leo, a conservative force in pushing courts to the right; Mark Paoletta, a former assistant White House counsel who was a key player in Justice Thomas’s confirmation; and Peter Rutledge, a lawyer and former clerk to the justice.

The official portrait of the U.S. Supreme Court

New York Times, Editorial: The Highest Court Has the Government’s Lowest Ethical Standards, Editorial Board, April 14, 2023. At least one member of the Supreme Court told Justice Clarence Thomas that there was no problem accepting privately paid luxury trips and other lavish gifts from “close personal friends” without disclosing them, according to a statement issued earlier this month by Justice Thomas. Whoever it was — names were not disclosed — gave him stunningly tone-deaf advice, given the uproar that followed when ProPublica reported that the justice had for more than 20 years accepted lavish gifts and trips from a billionaire conservative friend.

But Justice Thomas’s indulgence is just the latest and most egregious example of a weakness demonstrated by virtually every member of the court for decades, those nominated by Republican and Democratic presidents alike: a willingness to accept freebies, gifts and junkets — both costly and modest — from people and groups who find it useful to be close to nine of the most powerful people in the United States.

While some of these gifts have been disclosed (though not always in much detail), their preponderance — despite years of calls for restraint and self-policing by the court — show how vital it is that the Supreme Court adhere to a clear ethics code that would limit gifts and mandate full disclosure of all outside income to the justices.

The long list of comforts provided to Justice Thomas and his wife, Ginni, was shocking mainly in its rococo extravagance. Nine days of island cruising in Indonesia on a fully staffed superyacht. Regular flights on a private jet. Summers at a private resort in the Adirondacks, and every dollar of it paid by Harlan Crow, a real estate baron from Texas who has spent millions for decades to elect Republicans and on efforts to push the judiciary to the right.

None of it was on the justice’s annual financial disclosure form. Neither was a payment of $133,363 that Mr. Crow made to Mr. Thomas and his family in 2014 in exchange for three properties in Savannah, Ga., including the house where the justice’s mother has lived, ProPublica reported on Thursday. Mr. Crow said he bought the real estate in order to create a Clarence Thomas museum one day.

Experts said the failure to disclose the sale or the free trips was a clear violation of the Ethics in Government Act of 1978, which was intended to apply to all government employees and requires disclosure of real estate transactions and most gifts. Each branch of government was given considerable leeway in determining how it would comply with the law, and court critics have long said that the Supreme Court’s compliance was the weakest of any federal government body.

Failing to disclose gifts and transactions is only one part of the problem, though. The gifts that many justices have disclosed in full or in part over the years are often just as damaging to the court’s reputation as the ones they did not fully disclose. Justice Antonin Scalia, left, took at least 258 subsidized trips while on the court, often to distant destinations, all paid for by private donors, some of which were at least partially disclosed. (He often tacked hunting trips onto trips to give speeches, but only disclosed the speeches.) He died in 2016 while staying in a luxurious Texas hunting lodge owned by John Poindexter, a wealthy businessman whose company had legal matters before the court; that trip was never officially disclosed.

Justice Stephen Breyer, right, took at least 225 subsidized trips from 2004 to 2018, according to data compiled by the Center for Responsive Politics, including trips to Europe, Japan, India and Hawaii. One was a trip to Nantucket paid for by David Rubenstein, a private equity mogul.

The problem with these kinds of favors and gifts — regardless of whether they are disclosed — is that they badly damage the court’s reputation as the ultimate fair arbiter of the law. The court has already sunk in public esteem because of partisanship, particularly as justices nominated by Republicans have set aside precedents, public sentiment and impartiality to advance identifiably right-wing agendas. But when the court’s members accept benefits from the nation’s moneyed elite, no matter their politics, it sends a signal that ordinary Americans without those resources are at a disadvantage.

April 12

U.S. Supreme Court Associate Justice Clarence Thomas, left, and his billionaire friend and benefactor Harlan Crow (file photos).

New York Times, Jet-Setting With Clarence Thomas Puts Spotlight on Eccentric Billionaire, Abbie VanSickle, April 12, 2023 (print ed.). The justice’s connection to Harlan Crow raised questions of whether friendships can be separated from politics and intensified calls for an ethics code.

Shortly after the leak of the draft opinion to overturn Roe v. Wade, Justice Clarence Thomas made headlines last spring when he told an audience in Dallas that the breach might have permanently damaged the court. Less noticed was what he said about his longtime friend, the conservative Texas real estate billionaire Harlan Crow.

As the justice settled into a chair by a fireplace at Old Parkland, a palatial office complex, his interviewer, John Yoo, a law professor at the University of California, Berkeley, thanked Mr. Crow, the owner of Old Parkland, for making “this wonderful facility available” for the talk.

“I know Harlan hates that,” Mr. Yoo said, a reference to the eccentric and press-averse Mr. Crow’s dislike of praise in public.

“That’s why I wouldn’t say it,” Justice Thomas chimed in, amused. “I’d like to keep that friendship.”

The precise nature of the friendship between the justice and Mr. Crow is under new scrutiny since ProPublica revealed last week that Justice Thomas did not disclose lavish gifts from Mr. Crow, including travel on the billionaire’s private jet, stays at his Adirondacks resort and island hopping in Indonesia on his superyacht.

Although Justice Thomas has said the two have been close friends for decades and the trips were personal, Mr. Crow — a longtime donor to conservative causes whose Dallas home includes paintings by Renoir and a signed copy of “Mein Kampf” — did not meet the justice until he was already on the court. The relationship has raised questions about whether such a friendship can be separated from politics and has intensified calls from Democrats for transparency and an ethics code for the justices.

“The fact that there’s no way to get an independent internal investigation of a justice is how Justice Thomas has been able to get away with all these reporting failures,” said Senator Sheldon Whitehouse, left, Democrat of Rhode Island. “There’s simply no process to look into any of this other than the justice making his own determination.”

Mr. Crow, 73, has since 2006 been a trustee of the Supreme Court Historical Society, a charity that asks for an annual contribution of $5,000 or more to further its mission of preserving the court’s history and educating the public. Mr. Crow is also a trustee of the George W. Bush Presidential Library Foundation and gave $500,000 to a group that ran advertisements to build public support for Mr. Bush’s Supreme Court picks.

Mr. Crow and his firm have not had a case before the Supreme Court during Justice Thomas’s time there, and in a statement to ProPublica said he and the justice and their wives kept the court and politics out of their friendship.

April 10

New York Times, Senate Judiciary Committee Promises Supreme Court Ethics Hearing, Carl Hulse, April 10, 2023. Democrats on the panel wrote to the chief justice, urging an investigation into gifts and travel provided to Justice Clarence Thomas.

Democratic members of the Senate Judiciary Committee on Monday promised a hearing looking into the Supreme Court’s ethical standards and urged Chief Justice John G. Roberts Jr., right, to investigate Justice Clarence Thomas’s undisclosed acceptance of gifts and luxurious excursions from a wealthy businessman and Republican donor.

In a letter to the chief justice, Senator Richard J. Durbin, shown above in a file photo, Democrat of Illinois and chairman of the committee, joined the 10 other Democratic senators on the panel in writing that if the court did not act in response to an investigation by ProPublica into Justice Thomas’s relationship with Harlan Crow, a Texas real estate billionaire, the committee would consider drafting legislation clarifying the court’s ethics rules.

“But you do not need to wait for Congress to act to undertake your own investigation into the reported conduct and to ensure that it cannot happen again,” the letter said.

In the letter, the senators said the conduct of Justice Thomas “is plainly inconsistent with the ethical standards the American people expect of any person in a position of public trust.”

After the report by ProPublica, Justice Thomas, left, said he had been advised in the past that he need not report such gifts from personal friends.

Democrats in Congress have tried for years to persuade the court to, at a minimum, adopt the ethics rules that the rest of the federal judiciary follows, and they have accused the court of arrogance in dismissing the criticism from the Capitol. After other accusations that wealthy Republicans had gained access to the justice through social contacts, and the leak of a Supreme Court decision last year, Mr. Durbin had raised the possibility of a Senate inquiry but none had been planned before the latest disclosures by the news organization.

Democrats have said the court should impose a new code of conduct on itself, establish new standards for recusal from cases and establish financial disclosure rules in line with those that members of Congress must follow.

“The Senate Judiciary Committee, which has legislative jurisdiction over federal courts and judges, has a role to play in ensuring that the nation’s highest court does not have the federal judiciary’s lowest ethical standards,” said the letter from the Democrats. “You have a role to play as well, both in investigating how such conduct could take place at the court under your watch, and in ensuring that such conduct does not happen again. We urge you to immediately open such an investigation and take all needed action to prevent further misconduct.”

No date was immediately announced for the planned hearing.

Citing its status as a separate branch of government, the Supreme Court has in the past insisted it is capable of policing itself.

April 9

Washington Post, Retropolis, The Past, Rediscovered:  Can a Supreme Court justice be impeached? Meet ‘Old Bacon Face,’ Gillian Brockell, April 9, 2023 (print ed.). Calls to remove Supreme Court Justice Clarence Thomas have grown louder amid a new report detailing lavish trips he has taken with a powerful Republican donor. But how exactly would that work, and has it ever been done before?

The Constitution allows for the impeachment and removal of justices in much the same manner as a president: The House can vote for impeachment, and then a Senate trial is held, with a two-thirds vote needed to convict.

Only one justice has ever been impeached, and it was more than 200 years ago.

Samuel Chase was a frequent subject of the rumor mill for his entire life. As a young lawyer in Annapolis in the 1760s, he was expelled from a debating society for “extremely irregular and indecent” behavior. He was also an early critic of the Stamp Act and headed up Anne Arundel County’s chapter of the Sons of Liberty.

His height and broadness added to his gruff and intimidating personality. He also had a reddish-brown complexion, earning him the nickname “Old Bacon Face” — which some might consider its own impeachable offense.

In 1776, Chase signed the Declaration of Independence representing Maryland. By the 1780s, he had moved to Baltimore, where he rose through the ranks as a judge.

President George Washington nominated Chase to the Supreme Court in 1796. At the time, though, the highest court in the land had little to do, so justices kept busy by serving on lower courts, too.

And those lower courts are where Chase’s problems arose.

While presiding over the 1800 sedition trial of Thomas Cooper, Chase railed against Cooper during his instructions to the jury, seeming to act more as a prosecutor than a judge.

April 6

U.S. Supreme Court Associate Justice Clarence Thomas, left, and his billionaire friend and benefactor Harlan Crow (file photos).

ProPublica, Investigation: Clarence Thomas and the Billionaire, Clarence Thomas Undisclosed Luxury Travel Gifts, Joshua Kaplan, Justin Elliott and Alex Mierjeski, April 6-7, 2023.In late June 2019, right after the U.S. Supreme Court released its final opinion of the term, Justice Clarence Thomas boarded a large private jet headed to Indonesia. He and his wife were going on vacation: nine days of island-hopping in a volcanic archipelago on a superyacht staffed by a coterie of attendants and a private chef.

If Thomas had chartered the plane and the 162-foot yacht himself, the total cost of the trip could have exceeded $500,000. Fortunately for him, that wasn’t necessary: He was on vacation with real estate magnate and Republican megadonor Harlan Crow, who owned the jet — and the yacht, too.

For more than two decades, Thomas has accepted luxury trips virtually every year from the Dallas businessman without disclosing them, documents and interviews show. A public servant who has a salary of $285,000, he has vacationed on Crow’s superyacht around the globe. He flies on Crow’s Bombardier Global 5000 jet. He has gone with Crow to the Bohemian Grove, the exclusive California all-male retreat, and to Crow’s sprawling ranch in East Texas. And Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks.

The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.

These trips appeared nowhere on Thomas’ financial disclosures. His failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts, two ethics law experts said. He also should have disclosed his trips on the yacht, these experts said.

Thomas did not respond to a detailed list of questions.

In a statement, Crow acknowledged that he’d extended “hospitality” to the Thomases “over the years,” but said that Thomas never asked for any of it and it was “no different from the hospitality we have extended to our many other dear friends.”

Through his largesse, Crow has gained a unique form of access, spending days in private with one of the most powerful people in the country. By accepting the trips, Thomas has broken long-standing norms for judges’ conduct, ethics experts and four current or retired federal judges said.

“It’s incomprehensible to me that someone would do this,” said Nancy Gertner, a retired federal judge appointed by President Bill Clinton. When she was on the bench, Gertner said, she was so cautious about appearances that she wouldn’t mention her title when making dinner reservations: “It was a question of not wanting to use the office for anything other than what it was intended.”

Virginia Canter, a former government ethics lawyer who served in administrations of both parties, said Thomas “seems to have completely disregarded his higher ethical obligations.”

“When a justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust,” said Canter, now at the watchdog group CREW. “Quite frankly, it makes my heart sink.”

Axios Sneak Peek, 1 big thing: Supreme Court fight reignites, Zachary Basu and Andrew Solender, April 6-7, 2023. An explosive ProPublica investigation into Supreme Court Justice Clarence Thomas' ties to a billionaire GOP donor has triggered a furious response from Democrats, sparking calls for resignation, impeachment and sweeping reforms to the nation's highest court.

Driving the news: For more than two decades, the conservative justice has accepted luxury trips virtually every year from Dallas real estate magnate Harlan Crow without disclosing them, according to flight records, internal documents and interviews with staff.

Thomas and Crow are genuine friends, ProPublica reports, but the extent and frequency of the billionaire's gifts "have no known precedent in the modern history" of the Supreme Court.

By accepting the opulent trips on Crow's private jet and superyacht — and failing to report them on his financial disclosures — Thomas broke long-standing norms and potentially a post-Watergate ethics law.

Why it matters: The vast majority of Democrats already believe the Supreme Court is broken, unrepresentative of the views of most Americans, and captured by conservative and corporate interests.

That trend of distrust was accelerated by the overturning of Roe v. Wade last summer, a landmark decision that has transformed the political landscape.
A record-low 47% of Americans said they have "a great deal" or "a fair amount" of trust in the Supreme Court last year, down 20 points from 2020, according to Gallup polling.

Between the lines: Thomas, in particular, has become a top target of Democratic anger after it was revealed that his wife, conservative activist Ginni Thomas, participated in Trump-aligned efforts to overturn the 2020 election.

What we're hearing: Within hours of the report's publication, Sen. Dick Durbin (D-Ill.), chair of the Senate Judiciary Committee, referred to it as a "call to action" and promised his panel "will act."

Sen. Chris Van Hollen (D-Md.), a member of the Appropriations Committee, floated using the appropriations process to "ensure that the Supreme Court adopts a code of conduct."

Sen. Tina Smith (D-Minn.) revived a progressive call to "expand the court" — an idea that gained steam after Republicans quickly replaced the late Justice Ruth Bader Ginsburg in 2020, but which is opposed by President Biden.

Reality check: With Republicans in control of the House, any congressional action against the conservative jurist is likely to fall flat.

"Under Republican leadership, it’s not going to happen, I’m afraid," Johnson told Axios of impeachment or congressional censure.
"Based on what I've seen so far from my House Republican colleagues, I think they're going to close their eyes, cover their ears and hope this goes away soon," Rep. Glenn Ivey (D-Md.), a House Judiciary member, told Axios.

Washington Post, Clarence Thomas has reported receiving only two gifts since 2004, Emma Brown and Shawn Boburg, April 8, 2023 (print ed.). Thomas has accepted luxury travel for years from GOP donor, report says.

Eighteen years ago, the Los Angeles Times detailed how Thomas had reported receiving thousands of dollars’ worth of gifts -- far more than the other justices on the Supreme Court at the time. That story appears to have marked a turning point for Thomas’s public disclosure of gifts.

“Justice Thomas Reports Wealth of Gifts” was the title of a December 2004 front-page story in the Los Angeles Times, detailing how Clarence Thomas had received gifts worth tens of thousands of dollars over the prior six years — far more than the other justices on the Supreme Court at the time.

The story appears to have marked a turning point for Thomas and his public disclosures of gifts. Since the news account was published 18 years ago, Thomas has reported receiving just two gifts, according to a Washington Post review of his financial disclosure forms posted online by nonprofit groups Fix the Court and OpenSecrets.

A court spokeswoman did not respond on Thursday to questions for Thomas about the abrupt change since 2004 in the number and value of his reported gifts.

Thomas’s more recent disclosures don’t stand out. Over the last five years, seven of the 11 justices who filed annual disclosures said they had not received gifts, according to a Post review. Thomas was one of them.

Federal judges may not accept gifts from anyone with business before the court and they must report all gifts worth more than $415, according to current rules.

Washington Post, Who is Harlan Crow, the GOP megadonor who vacations with Justice Thomas? Aaron Gregg and Rachel Lerman, April 6, 2023. The Texas billionaire is at the center of a ProPublica report, which describes lavish trips across the globe with the associate justice.

Supreme Court Justice Clarence Thomas went on lavish vacations paid for by Harlan Crow, a Texas billionaire who is a prominent Republican donor, according to a new report from the investigative news organization ProPublica.

The report describes a close relationship between the two men stretching back at least two decades. It states that Thomas accepted luxury trips “nearly every year” from Crow without disclosing them, including junkets on the billionaire’s superyacht and regular trips on his private jet. And it states that none of it appears in Thomas’s financial disclosures.

Crow is a real estate businessman in Dallas and the chairman of Crow Holdings, a family business that manages the capital of the family, according to its website. He started with the company as an industrial leasing agent and took over leadership of the business in 1988.

He also serves on the board of several organizations, including the Supreme Court Historical Society and the American Enterprise Institute, a right-leaning think tank.

His father, Trammell Crow, created a commercial real estate company that was once the “country’s largest landlord,” according to the Wall Street Journal. When the younger Crow took over, the company was reportedly near bankruptcy and he restructured it.

The Trammell Crow Co. is now a subsidiary of large real estate firm CBRE, which agreed to buy the smaller company for about $2 billion in 2006.

ProPublica reports that Crow has been a major Republican donor for years, giving more than $10 million in political donations. The actual number may be higher, the publication reports, because of “dark money” donations to groups that don’t publicly disclose their contributors. The investigation says Crow, who has donated to the Federalist Society, has “long supported efforts to move the judiciary to the right.”

In a statement Crow provided to ProPublica, Crow said he and his wife Kathy have known Clarence and Ginni Thomas since 1996, describing them as “very dear friends.” He said the hospitality he provided them is no different than that which they extended to their other close friends.

“We have been most fortunate to have a great life of many friends and financial success, and we have always placed a priority on spending time with our family and friends,” Crow wrote, adding that he had not sought to influence Thomas on any legal or political issue.

ProPublica’s Thursday report is not the first to draw attention to Crow’s relationship with Thomas.

In 2011, the New York Times reported that Crow had done favors for Thomas and his wife, specifically financing a multimillion-dollar restoration of a cannery in Pin Point, Ga., which was a pet project of the justice. The Times also reported that Crow financed a library dedicated to Thomas in Savannah, Ga., and presented him with a Bible that had belonged to Frederick Douglass. It also reported that Crow had provided $500,000 for Ginni Thomas to start a political organization.

Crow, in his statement to ProPublica, said neither Clarence nor Ginni Thomas asked for any of the hospitality they provided. “We did so because we believe Justice Thomas to be one of the greatest Americans of our time, and we believe it is important to make sure as many people as possible learn about him, remember him, and understand the ideals for which he stands,” Crow wrote.

New York Times, After Justice Thomas Revelations, Lawmakers Call for Tighter Ethics Code, Zach Montague, April 7, 2023 (print ed.). Clarence Thomas failed to disclose that he accompanied Harlan Crowe, the billionaire and conservative donor, on a series of vacations, ProPublica revealed.

Democratic lawmakers reiterated calls on Thursday to tighten ethics rules for the Supreme Court after a report revealed that Justice Clarence Thomas had accepted luxury gifts from a major conservative donor without disclosing them.

An investigation by ProPublica described how Justice Thomas accompanied the donor, Harlan Crow, a real estate billionaire, on a series of vacations for nearly two decades. The trips included extended stays on Mr. Crow’s yacht, flights on Mr. Crow’s private jet and visits to Mr. Crow’s all-male private retreat in Monte Rio, Calif.

The disclosure early Thursday renewed scrutiny of Justice Thomas, who has long faced questions over conflicts of interest in part because of the political activities of his wife, Virginia Thomas.

No formal code of conduct on the Supreme Court specifically bars the justice from taking the trips mentioned in ProPublica’s reporting. But under the Ethics in Government Act of 1978, justices, like federal judges, must file a financial disclosure each year that lists gifts of more than $415 in avoidance of even an “appearance of impropriety.” The cost of one of the trips with Mr. Crow may have exceeded $500,000, according to ProPublica.

Lawmakers have seized on the lack of enforceable ethics code governing Supreme Court justices, urging that they be held to standards similar to those in place for members of the executive and legislative branches.

The Senate is considering a bill that would codify that practice, in line with past legislation. And new rules adopted in March now require the justices to report travel by private jet and extended stays at commercial properties including hotels, resorts and hunting lodges.

United States Supreme Court Justice Clarence Thomas (l) with his wife, Virginia (Ginni) Thomas (r).

Washington Post, Justice Clarence Thomas has accepted luxury travel for years from GOP donor, report says, John Wagner, April 6, 2023. Supreme Court Justice Clarence Thomas accepted luxury trips around the globe for more than two decades, including travel on a superyacht and private jet, from a prominent Republican donor without disclosing them, according to a new report.

ProPublica reported Thursday on an array of trips funded by Harlan Crow, a Dallas businessman. The publication said Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks. It said the justice also has vacationed at Crow’s ranch in East Texas and has joined Crow at the Bohemian Grove, an exclusive all-male retreat in California.

ProPublica cited a nine-day trip that Thomas and his wife, Virginia “Ginni” Thomas, took to Indonesia in 2019, shortly after the court released its final opinions of the term. That trip, which included flights on Crow’s jet and island-hopping on a superyacht, would have cost the couple more than $500,000 if they had paid for it themselves, the publication said.

Neither the Supreme Court nor Thomas responded immediately to questions about the report on Thursday morning. ProPublica said Thomas did not respond to questions about its reporting.

In a statement, Crow acknowledged that he has extended “hospitality” to the Thomases “over the years” but said the couple “never asked for any of this hospitality” and that he has not tried to influence the justice on matters before the court.

“We have never asked about a pending or lower court case, and Justice Thomas has never discussed one, and we have never sought to influence Justice Thomas on any legal or political issue,” Crow said. “More generally, I am unaware of any of our friends ever lobbying or seeking to influence Justice Thomas on any case, and I would never invite anyone who I believe had any intention of doing that. These are gatherings of friends.”

Federal law mandates that top officials from the three branches of government, including the Supreme Court, file annual forms detailing their finances, outside income and spouses’ sources of income, with each branch determining its own reporting standards.

Judges are prohibited from accepting gifts from anyone with business before the court. Until recently, however, the judicial branch had not clearly defined an exemption for gifts considered “personal hospitality.”

Revised rules adopted by a committee of the Judicial Conference, the courts’ policymaking body, seek to provide a fuller accounting. The rules took effect March 14.

Gifts such as an overnight stay at a personal vacation home owned by a friend remain exempt from reporting requirements. But the revised rules require disclosure when judges are treated to stays at commercial properties, such as hotels, ski resorts or corporate hunting lodges. The changes also clarify that judges must report travel by private jet.

April 5

New York Times, Opinion: We Finally Know the Case Against Donald Trump, and It Is Strong, Karen Friedman Agnifilo and Norman Eisen, April 5, 2023 (print ed.). Ms. Agnifilo is a former Manhattan chief assistant district attorney. Mr. Eisen is a senior fellow at the Brookings Institution.

For weeks, Alvin Bragg, the Manhattan district attorney, has come under heavy fire for pursuing a case against Donald Trump. Potential charges were described as being developed under a novel legal theory. And criticism has come not only from Mr. Trump and his allies, as expected, but also from many who are usually no friends of the former president but who feared it would be a weak case.

With the release of the indictment and accompanying statement of facts, we can now say that there’s nothing novel or weak about this case. The charge of creating false financial records is constantly brought by Mr. Bragg and other New York D.A.s. In particular, the creation of phony documentation to cover up campaign finance violations has been repeatedly prosecuted in New York. That is exactly what Mr. Trump stands accused of.

The judge and jury will make the ultimate determination, but they will be far from the first to consider this question, and the answer has usually been a guilty verdict.

First, a note about the Manhattan D.A.’s office that will prosecute this case: It is hardly a typical local cog in the judicial system. In fact, it is unique. Its jurisdiction is the financial capital of the world. That means the office routinely prosecutes complex white-collar cases with crime scenes that involve the likes of the BNP Paribas international banking scandal. Big cases involving powerful, high-profile individuals have been handled by the office for decades. That was proved most recently by the office’s conviction of the Trump Organization and the guilty plea of one of its top executives, Allen Weisselberg, on charges relating to an intricate yearslong tax fraud scheme.

The books and records counts laid out in the charging papers against Mr. Trump are the bread and butter of the D.A.’s office. Mr. Trump, who pleaded not guilty to all charges on Tuesday, is the 30th defendant to be indicted on false records charges by Mr. Bragg since he took office just over a year ago, with the D.A. bringing 151 counts under the statute so far. Indeed, the Trump Organization conviction and the Weisselberg plea included business falsification felonies.

New York Times, Opinion: The Strongest and Weakest Parts of the Case Against Trump, David French, right, April 5, 2023. Late last month I wrote exactly the kind of piece that makes every legal analyst nervous.

I tried to anticipate the Manhattan grand jury’s indictment of Donald Trump and to evaluate its (likely) merits. In my view then, an indictment wouldn’t be frivolous, but it would be unwise — mainly because it was expected to rely on a largely untested legal theory that would transform the business falsification misdemeanors Trump is accused of into felonies by tying the misdemeanors to other crimes that either hadn’t been prosecuted or rest on contentious legal arguments.

In other words, the case wasn’t expected to be nearly as straightforward as the possible felony case in Georgia relating to Trump’s effort to overturn the election result in Georgia, the possible federal felony case relating to Trump’s effort to disrupt the peaceful transfer of power or the possible federal felony case relating to Trump’s mishandling of classified documents and efforts to obstruct justice.

I’ve now read the grand jury’s indictment and the statement of facts supporting the indictment, and my conclusion is unchanged. There are no real legal surprises. The theory is exactly what we anticipated — that Trump falsified business records with the “intent to commit another crime,” and it’s the controversial other crime that converts the crime of falsification of business records from a misdemeanor to a felony.

But the indictment is complicated, and so is the analysis, so rather than rehash an argument I made less than two weeks ago, I’d like to do something different: answer the questions I’ve already received about the indictment, to help explain the nature of it and the best arguments for and against District Attorney Alvin Bragg’s case. So, without further ado, let’s answer some common questions.

In short, the Trump prosecution faces serious legal questions, and the answers to the legal questions will decide the case far more than any factual dispute. The evidence shows rather clearly that Trump engaged in a scheme to pay off women who said they were his paramours, in order to influence the 2016 election. That is clearly immoral and would be extremely embarrassing to anyone who has shown signs that he is capable of embarrassment. But whether it was unlawful is the key question that will decide Trump’s legal fate.

March

March 29

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

Washington Post, Activist group led by Ginni Thomas received nearly $600,000 in anonymous donations, Shawn Boburg and Emma Brown, March 29, 2023 (print ed.). Funding for group that battled ‘cultural Marxism’ was channeled through right-wing think tank, Post investigation finds.

A little-known conservative activist group led by Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, collected nearly $600,000 in anonymous donations to wage a cultural battle against the left over three years, a Washington Post investigation found.

The previously unreported donations to the fledgling group Crowdsourcers for Culture and Liberty were channeled through a right-wing think tank in Washington that agreed to serve as a funding conduit from 2019 until the start of last year, according to documents and interviews. The arrangement, known as a “fiscal sponsorship,” effectively shielded from public view details about Crowdsourcers’ activities and spending, information it would have had to disclose publicly if it operated as a separate nonprofit organization, experts said.

The Post’s investigation sheds new light on the role money from donors who are not publicly identified has played in supporting Ginni Thomas’s political advocacy, long a source of controversy. The funding is the first example of anonymous donors backing her activism since she founded a conservative charity more than a decade ago. She stepped away from that charity amid concerns that it created potential conflicts for her husband on hot-button issues before the court.

Thomas’s activism has set her apart from other spouses of Supreme Court justices. She has allied with numerous people and groups that have interests before the court, and she has dedicated herself to causes involving some of the most polarizing issues in the country.

White House Chief of Staff Mark Meadows walks to board Marine One from the South Lawn of the White House in July 2020. Later that year, Ginni Thomas privately pressed Meadows to pursue efforts to overturn the presidential election. (Jabin Botsford/The Washington Post)

In 2020, she privately pressed White House Chief of Staff Mark Meadows to pursue efforts to overturn the presidential election, and she sent emails urging swing-state lawmakers to set aside Joe Biden’s popular-vote victory in awarding electoral votes. When those efforts were revealed by The Post last year, they intensified questions about whether her husband should recuse himself from cases related to the election and attempts to subvert it.

In recent months, the high court has faced increasing scrutiny over a range of ethical issues, including the lack of transparency surrounding potential conflicts of interest and a whistleblower’s claim that wealthy Christian activists sought access to justices at social gatherings to shore up their resolve on abortion and other conservative priorities.

In a brief statement to The Post, Mark Paoletta, a lawyer for Ginni Thomas, said she was “proud of the work she did with Crowdsourcers, which brought together conservative leaders to discuss amplifying conservative values with respect to the battle over culture.”

“She believes Crowdsourcers identified the Left’s dominance in most cultural lanes, while conservatives were mostly funding political organizations,” Paoletta wrote. “In her work, she has complied with all reporting and disclosure requirements.”

He wrote: “There is no plausible conflict of interest issue with respect to Justice Thomas.”

A spokeswoman for the Supreme Court did not respond to questions for Clarence Thomas.

In 2019, anonymous donors gave the think tank Capital Research Center, or CRC, $596,000 that was designated for Crowdsourcers, according to tax filings and audits the think tank submitted to state regulators. The majority of that money, $400,000, was routed through yet another nonprofit, Donors Trust, according to that organization’s tax filings. Donors Trust is a fund that receives money from wealthy donors whose identities are not disclosed and steers it toward conservative causes.

The documents do not say how or whether the money was spent. It is not clear how much compensation, if any, Ginni Thomas received.

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

New York Times, Opinion: We’re About to Find Out How Far the Supreme Court Will Go to Arm America, Linda Greenhouse (shown at right on the cover of her memoir, "Just a Journalist"), March 29, 2023. How much further will the Supreme Court go to assist in the arming of America? That has been the question since last June, when the court ruled that New York’s century-old gun licensing law violated the Second Amendment. Sooner than expected, we are likely to find out the answer.

On March 17, the Biden administration asked the justices to overturn an appeals court decision that can charitably be described as nuts, and accurately as pernicious. The decision by a three-judge panel of the United States Court of Appeals for the Fifth Circuit invalidated a federal law that for almost 30 years has prohibited gun ownership by people who are subject to restraining orders for domestic violence.

The Fifth Circuit upheld the identical law less than three years ago. But that was before President Donald Trump put a Mississippi state court judge named Cory Wilson on the appeals court. (As a candidate for political office in 2015, Wilson said in a National Rifle Association questionnaire that he opposed both background checks on private gun sales and state licensing requirements for potential gun owners.)

Judge Wilson wrote in a decision handed down in March that the appeals court was forced to repudiate its own precedent by the logic of the Supreme Court’s decision in the New York licensing case. He was joined by another Trump judge, James Ho, and by Edith Jones, an appointee of President Ronald Reagan; Judge Jones has long been one of the most aggressive conservatives on the country’s most conservative appeals court.

Now it is up to the justices to say whether that analysis is correct.

Fifteen years after the Supreme Court’s Heller decision interpreted the Second Amendment to convey an individual right to own a gun, there is no overstating the significance of the choice the court has been asked to make. Heller was limited in scope: It gave Americans a constitutional right to keep handguns at home for self-defense. The court’s decision last June in New York State Rifle and Pistol Association v. Bruen was on the surface also quite limited, striking down a law that required a showing of special need in order to obtain an unrestricted license to carry a concealed gun outside the home. New York was one of only a half-dozen states with such a requirement, as the court put it in the Bruen decision.

What was not limited about the New York decision — indeed, what was radical — was the analysis that Justice Clarence Thomas employed in his opinion for the 6-3 majority. Following Heller, courts had evaluated gun restrictions by weighing the personal Second Amendment claim against the government’s interest in the particular regulation, a type of balancing test that has long been common in constitutional adjudication. The Bruen decision rejected that approach, instead placing history above all else.

March 19

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

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

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

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

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

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

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

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

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

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

March 18

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 5

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

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

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

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

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

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

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

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

March 3

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

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

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

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

February

Feb. 28

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

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

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

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

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

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

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

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

Feb. 26

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

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

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

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

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

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

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

Feb. 20

The official portrait of the U.S. Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Feb. 17

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alex Jones bankruptcy filing

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

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

Feb. 10

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

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

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

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

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

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

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

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

Feb. 6

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Feb. 3

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

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

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

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

1. Introduction

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

And it does not get better from there.

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

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

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

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

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

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

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

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

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

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

Washington Post, Opinion: Ye old Supreme Court? Your originalism is making America unsafe, Ruth Marcus, right, Feb. 4, 2023.  When the Supreme Court ruled in 2008 that the Second Amendment protects individuals’ right to gun ownership, it emphasized the ability “of law-abiding, responsible citizens to use arms in defense of hearth and home.”

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

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

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

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

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

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

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

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

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

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

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

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

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

January 2003

Jan. 31

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jan. 30

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

U.S. Justice Failures, Scandals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jan. 27

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jan. 23

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

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

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

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

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

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

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

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

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

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

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

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

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

Jan. 22

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Relevant Recent Headlines

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

Jan. 19

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

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

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

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

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

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

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

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

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

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

Jan. 14

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

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

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

These points include the following:

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

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

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

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

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

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

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

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

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

Jan. 12

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

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

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

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

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

Jan. 7

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jan. 5

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

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

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

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

Jan. 3

More On Trump, Insurrectionists, Allies

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And the answer—perhaps surprisingly—is no.

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

December

Dec. 31

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dec. 28

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

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

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

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

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

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

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

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

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

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

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

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

Dec. 26

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

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

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

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

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

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

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

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

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

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

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

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

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

Dec. 16

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

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

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

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

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

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

A select committee spokesperson declined to comment.

A Trump spokesperson denounced the committee’s plans.

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

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

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

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

Dec. 14

Washington Post, Opinion: Why Kavanaugh partying with right-wing conservatives raises ethical questions, Ruth Marcus, right, Dec. 14, 2022 (print ed.). I’m not worked up about Justice Brett M. Kavanaugh’s appearance at a conservative-studded holiday party. But the episode serves to highlight a disturbing trend among the justices, more prevalent on the right than the left: funneling their public appearances into compatible ideological silos.
Sign up for a weekly roundup of thought-provoking ideas and debates

Some background on Kavanaugh’s partying: Politico reported that the justice attended a Christmas party last weekend at the home of American Conservative Union chair Matt Schlapp. The two men worked together at the George W. Bush White House; Schlapp went to bat for Kavanaugh during his contentious confirmation hearings in 2018; and Kavanaugh has been to Schlapp’s party in previous years.

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

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

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

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

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

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

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

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

Dec. 11

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

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

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

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

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

Eliminate lifetime tenure for justices

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

Implement ethics rules for justices

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

Expand the court

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

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

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

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

Dec. 10

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

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

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

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

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

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

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

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

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

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

 Dec. 9

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

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

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

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

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

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

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

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

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

Sounds Trumpy, no?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dec. 8

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dec. 7

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

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

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

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

Former CIA officer Rolf Mowatt-Larssen also comments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 Dec. 6

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

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

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

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

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

Dec. 4

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

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

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

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

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

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

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

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

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

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

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

November

Nov. 30

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

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

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

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

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

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

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

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

Nov. 22

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

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

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

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

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

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

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

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

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

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

Nov. 21

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nov. 20

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

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

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

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

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

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

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

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

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

Nov. 19

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nov. 13

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

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

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

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

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

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

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

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

A LACK OF ACCOUNTABILITY

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

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

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

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

Nov. 7

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

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

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

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

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

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

Nov. 6

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

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

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

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

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

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

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

Nov. 4

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

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

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

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

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

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

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

Nov. 2

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

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

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

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

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

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

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

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

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

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

Nov. 1

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

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

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

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

October

Oct. 30

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oct. 27

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oct. 26

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

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

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

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

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

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

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

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

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

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

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

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

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

Oct. 24

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

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

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

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

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

Prosecutors appear to be particularly interested in any efforts Mr. Graham may have made to urge officials in Georgia, including its secretary of state, Brad Raffensperger, to address allegations of voting irregularities before Congress was to vote in January 2021 to certify that President Biden was the legitimate winner of the presidential election.

New York Times, Alito Assured Ted Kennedy in 2005 of Respect for Roe v. Wade, Diary Says, John A. Farrell, Oct. 24, 2022. In the senator’s recollection, the Supreme Court justice who wrote the opinion overturning the abortion ruling tried to show Mr. Kennedy that he was not a threat to Roe.

Senator Edward M. Kennedy looked skeptically at the federal judge. It was Nov. 15, 2005, and Samuel A. Alito Jr., who was seeking Senate confirmation for his nomination to the Supreme Court, had just assured Mr. Kennedy in a meeting in his Senate office that he respected the legal precedent of Roe v. Wade, the 1973 court decision that legalized abortion.

“I am a believer in precedents,” Judge Alito said, in a recollection the senator recorded and had transcribed in his diary. “People would find I adhere to that.”

In the same conversation, the judge edged further in his assurances on Roe than he did in public. “I recognize there is a right to privacy,” he said, referring to the constitutional foundation of the decision. “I think it’s settled.”

But Mr. Kennedy, a Massachusetts Democrat and longtime supporter of abortion rights, remained dubious that November day that he could trust the conservative judge not to overturn the ruling. He brought up a memo that Judge Alito had written as a lawyer in the Reagan administration Justice Department in 1985, which boasted of his opposition to Roe.

Judge Alito assured Mr. Kennedy that he should not put much stock in the memo. He had been seeking a promotion and wrote what he thought his bosses wanted to hear. “I was a younger person,” Judge Alito said. “I’ve matured a lot.”

The answer did not assuage Mr. Kennedy, who went on to vote against Judge Alito’s confirmation. If the judge could configure his beliefs to get that 1985 promotion, Mr. Kennedy asked in a notation in his diary, how might he dissemble to clinch a lifetime appointment to the nation’s highest court?

Justice Alito wrote the majority opinion this past June in Dobbs v. Jackson Women’s Health Organization, the momentous Supreme Court decision that put aside 50 years of precedent and overturned Roe. Respect for longstanding precedent “does not compel unending adherence to Roe’s abuse of judicial authority,” he wrote. “Roe was egregiously wrong from the start.”

John A. Farrell is an American historian and the author of biographies of Tip O’Neill, Clarence Darrow, Richard M. Nixon and Edward M. Kennedy. Previously he was a White House correspondent and Washington editor for The Boston Globe.

Oct. 15

The U.S. Supreme Court

 Washington Post, Editorial: The latest Mar-a-Lago ruling underscores the frivolousness of Trump’s complaints, Editorial Board, Oct. 15, 2022 (print ed.). The Supreme Court has dismissed Donald Trump in a single sentence.

With no note of dissent, the justices Thursday rejected the former president’s request to intervene in litigation over documents seized from his Mar-a-Lago estate this summer. This outcome only underscores the outrageous frivolity of the contentions his team has lodged in courts of law and public opinion.

The Supreme Court shouldn’t even have entertained the petition to reconsider part of an appeals court order allowing the Justice Department to continue to review classified documents as a special master looks over other materials for claims of attorney-client or executive privilege. Yet the outcome of Justice Clarence Thomas’s referring the case his colleagues’ way is just another reason to scoff at claims from Mr. Trump that the legal system is treating him unfairly. He has had the opportunity to use, and attempt to abuse, the courts all the way up to the highest in the land — three of whose justices he appointed. And nonetheless, they’ve rejected his arguments.

These rejections are the only possible answer to the numerous implausible claims made by Mr. Trump, including that while in office he could declassify documents “even by thinking about it.” The Mar-a-Lago case is now ensnared in multiple courts thanks to multiple filings from Mr. Trump. Nowhere has he succeeded in establishing any real injury caused to him by the FBI being allowed to proceed with its investigation into the trove of more than 11,000 documents, including 103 with classification markings, that he took with him from the Oval Office. Meanwhile, federal prosecutors have ably described the injury that both an impeded investigation and the ability of an outside party to view highly sensitive materials would cause to the government. After all, these materials reportedly include information regarding nuclear capabilities of a foreign government and other secrets so closely held that the agents involved in the probe needed a special clearance to look at them.

Oct. 13

Washington Post, Biden says Supreme Court ‘more of an advocacy group’ than ‘evenhanded,’ John Wagner, Oct. 13, 2022 (print ed.). President Biden is stepping up his criticism of the Supreme Court, calling it “more of an advocacy group” than “evenhanded” after the court struck down the constitutional right to an abortion.

Biden’s assessment came Tuesday night toward the end of remarks at a virtual fundraiser for Rep. Lisa Blunt Rochester (D-Del.) as he laid out what he sees at stake for Democrats in November’s midterm elections.

“So, I view this … off-year election as one of the most important elections that I’ve been engaged in, because a lot can change because the institutions have changed,” Biden said. “The Supreme Court is more of an advocacy group these days than it is … evenhanded.”

Biden has taken repeated shots at the court since June, when it overturned Roe v. Wade, the landmark decision on abortion. The court now has a 6-to-3 conservative supermajority.

In public comments last month, Chief Justice John G. Roberts Jr. defended the authority of the Supreme Court to interpret the Constitution.

“You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide about what the appropriate decision is,” he said.

During his presidency, Donald Trump bristled over several of the court’s decisions, some regarding policy, others on his false claims about a rigged 2020 election. When the court in December 2020 rejected Trump’s legal challenge aimed at overturning the election, Trump tweeted: “The Supreme Court really let us down. No Wisdom, No Courage!”

Earlier in his remarks Tuesday night, Biden sought to frame the choices facing voters next month.

“We’re less than 30 days away from the midterms, and the stakes are clear,” he said. “The right to choose is on the ballot. Your Social Security you paid for your whole life is on the ballot. The safety of our kids and gun violence is on the ballot. Literally, the survival of the planet is … on the ballot. And your right to vote. And democracy itself is … on the ballot.”

New York Times, Supreme Court Rejects Trump Request to Intervene in Documents Case, Adam Liptak, Oct. 14, 2022 (print ed.). The court issued a one-sentence statement that amounted to a stinging rebuke to former President Trump, Adam Liptak, Oct. 13, 2022.

The Supreme Court on Thursday rejected a request from former President Donald J. Trump to intervene in the litigation over documents seized from his Florida estate.

The court’s order, which was a sentence long, was a stinging rebuke to Mr. Trump. There were no noted dissents, and the court gave no reasons, saying only: “The application to vacate the stay entered by the United States Court of Appeals for the 11th Circuit on Sept. 21, 2022, presented to Justice Thomas and by him referred to the court is denied.”

Mr. Trump asked the court last week to step into the tangled case, saying that an appeals court had lacked jurisdiction to remove about 100 documents marked as classified from a review of the seized material. The Supreme Court’s action means that the special master in the case, and Mr. Trump’s legal team, will not have access to those documents.

In their filing, Mr. Trump’s lawyers did not ask the Supreme Court to overturn a more important part of the appeals court’s ruling, which allowed the Justice Department to continue using the documents with classification markings in its criminal investigation of Mr. Trump’s handling of government records.

Oct. 11

Partially redacted documents with classified markings, including colored cover sheets indicating their status, that FBI agents reported finding in former president Donald Trump’s office at his Mar-a-Lago estate. The photo shows the cover pages of a smattering of paperclip-bound classified documents — some marked as “TOP SECRET//SCI” with bright yellow borders and one marked as “SECRET//SCI” with a rust-colored border — along with whited-out pages, splayed out on a carpet at Mar-a-Lago. Beside them sits a cardboard box filled with gold-framed pictures, including a Time magazine cover. (U.S. Department of Justice photo.)

Politico, DOJ to SCOTUS: Steer clear of Trump’s Mar-a-Lago case appeal, Josh Gerstein and Kyle Cheney, Oct. 11, 2022 It is the latest in a winding legal drama that will likely carry on for months.

The Justice Department is asking the Supreme Court to turn down former President Donald Trump’s bid to get a set of about 100 documents marked as classified back into the hands of an independent “special master” reviewing materials seized from his Mar-a-Lago estate.

Solicitor General Elizabeth Prelogar said in a brief filed Tuesday afternoon that there’s no reason for the high court to step into the dispute over what role the court system should play, if any, in overseeing investigators’ access to the records the FBI recovered from Trump’s Florida home.

Trump is seeking to get the records with classified markings back into the special master review in what appears to be an attempt to raise arguments that he declassified the records while he was president or that he declared them to be personal files not subject to the Presidential Records Act.

“Applicant has never represented in any of his multiple legal filings in multiple courts that he in fact declassified any documents — much less supported such a representation with competent evidence,” Prelogar wrote in the 32-page brief.

Trump has repeatedly, and publicly, claimed to have declassified all of the items seized by the FBI that bear classification markings — including some which characterize the records as among the most sensitive, closely held secrets the government possesses. But his lawyers have repeatedly refused to echo those claims, saying they don’t want to commit themselves to possible defense theories like declassification before a potential indictment.

In several rounds of legal filings and oral argument — including Trump’s application to the Supreme Court last week — the former president’s attorneys have decidedly avoided the issue, saying only that Trump’s access to the records remains absolute, “whether classified or declassified.”
Can we explain Trump’s reaction to the DOJ probe in 2 minutes? A POLITICO reporter tries (and fails, again)

Trump has also not presented any evidence he designated any of the seized materials as personal records, and DOJ has argued that classified documents — which inherently bear on national security — could never fit the statutory definition of personal records, since they are likely to have value to an incumbent or future administration.

The initial special master order U.S. District Court Judge Aileen Cannon issued at Trump’s request barred the government from using any of the seized records, including the potentially classified documents, for criminal investigation purposes until the special master process is complete.

The Justice Department appealed her ruling to the Atlanta-based 11th Circuit Court of Appeals. But it sought emergency relief only to restore access to the documents with classification markings, aiming to exclude them from the special master process. The appeals court sided with prosecutors on those issues last month in a 3-0 decision, although the broader appeal of Cannon’s ruling remains pending.

Trump’s bid for Supreme Court relief did not seek to restore the ban Cannon initially imposed on investigators accessing the documents with classified markings.

Trump’s request to the Supreme Court and the Justice Department’s response were technically submitted to Justice Clarence Thomas, because he oversees the 11th Circuit, which includes Florida. However, in high-profile cases, the individual justices almost always refer requests for emergency relief to the full court.

Oct. 9

Washington Post, Book Review: Trump’s origins in a New York world of con men, mobsters and hustlers, Sean Wilentz, Oct. 9, 2022 (print ed.). In “Confidence Man,” Maggie Haberman puts special emphasis on Trump’s ascent in the late 1970s and 1980s.

Maggie Haberman hails from a New York City very different from Donald Trump’s dominion of glitz and criminality, but she knows that dominion well.

Raised in the household of a traditional shoe-leather New York Times reporter and a well-connected publicist, and now herself ensconced at the digitized Times, Haberman’s earliest assignments involved covering City Hall and its satellite ethical sinkholes for the New York Post and the Daily News. That singular education in New York corruption has stuck with her and sets her apart from her peers reporting on the Trump presidency and its seditious aftermath. It now distinguishes Confidence Man: The Making of Donald Trump and the Breaking of America as a uniquely illuminating portrait of our would-be maximum leader.

With a sharp eye for the backstory, Haberman places special emphasis on Trump’s ascent in a late 1970s and 1980s New York demimonde of hustlers, mobsters, political bosses, compliant prosecutors and tabloid scandalmongers. This bygone Manhattan that Tom Wolfe could only satirize in The Bonfire of the Vanities is the fundament to any understanding of what makes Trump tick.

“The dynamics that defined New York City in the 1980s,” Haberman observes, “stayed with Trump for decades; he often seemed frozen there.” Zombielike, he swaggers and struts and cons on the world’s largest stage, much as he did when gossip columnists fawned over him as The Donald; and he will continue his night of the living dead, with menacing success, until someone finally drives a metaphorical stake through his metaphorical heart.

The rote rap on Trump is that he was a bumptious, hyper-ambitious real estate developer from Queens who never earned the respect of the Manhattan society pooh-bahs and who vowed to beat them at their own game — a vow that eventually led him to the Oval Office, astonishing even Trump. That storyline appears in Confidence Man, but Haberman knows it is superficial.

Inside that cauldron of fakery, Trump, no rugged individualist, and padded with his father’s millions, gravitated to a specific milieu of arrivistes whom he equated with supreme power, class and ruthlessness. He held in especially high regard the bully George Steinbrenner, from the outer outer borough of Cleveland, and became a constant presence in the Boss’s Yankee Stadium box. (I’d not known until reading Haberman that Trump, a wimp when it came to sacking underlings, found his tag line for “The Apprentice” by impersonating Steinbrenner barking “You’re fired,” over and over, not least at the Yankees’ oft-discharged manager Billy Martin.)

Off to one side there was the raffish schemer Roger Stone, left, a well-digger’s son from Norwalk, Conn., who got his start as one of the political saboteurs for Richard Nixon’s 1972 reelection campaign, and whose Washington lobbying mega-firm (with Paul Manafort as one of his co-partners) came to represent the Trump Organization’s interests. From the outermost borough of Adelaide, Australia, there was the unscrupulous media mogul Rupert Murdoch, who had already turned the liberal tabloid New York Post into a right-wing scandal sheet and who in 1985 completed the acquisition of 20th Century Fox that would eventually give the world Fox News, commanded by another member of the New York gang, Roger Ailes. There was also the high-profile, media-savvy U.S. attorney Rudy Giuliani, from Brooklyn like Sharpton, and he and Trump would circle each other until they seriously hooked up some years later.

Trump’s chief mentor, and a consigliere to most of the big shots named above, was the legendary underworld and overworld fixer Roy Cohn (shown with Trump at far right). The pampered son of a kingpin in Bronx Democratic politics, long notorious for his McCarthyite Red Scare grandstanding, Cohn, as Haberman details, connected Trump with Stone as well as with organized crime while giving him master classes in high-stakes con-man strategy and tactics. Whenever Trump today intimidates the press with threats of retaliation, whenever he defends his aggressions by claiming to be the victim, whenever he calls his accusers (especially if they represent the federal government) life-destroying, treasonous “scum,” he is channeling his mentor, Cohn.

Haberman offers plenty of material about how these men did it all with virtual impunity. Of course, there would be the occasional fines and sealed judgments — and Cohn was disbarred weeks before he died of AIDS, abandoned by Trump, who knew the score on being heartless. But as Haberman describes, Trump went to great lengths to square himself with a paragon of the city’s power elite, the longtime Manhattan district attorney Robert Morgenthau, including making generous donations to Morgenthau’s pet charity, the New York Police Athletic League, the one charity commitment, Morgenthau would joke warmly, that Trump could be counted on honoring. Not until Cyrus Vance Jr., who had a fine pedigree but was no crusader, succeeded Morgenthau in 2010 did Trump and his properties, after Vance backed off for years, finally face serious investigation by the D.A.’s office — and even then, prosecutors on the case quit in protest when Vance’s successor suddenly seemed to drop it.

Confidence Man likewise enlightens about the massive oversights by the press and the broader world of publishing, especially in New York, not simply in failing to expose the corruption that Haberman catalogues but in creating and then abetting Trump’s celebrity. There were certainly exceptional naysaying reporters, notably Jack Newfield’s protege at the Village Voice, Wayne Barrett, who, at Newfield’s urging, dug deep into Trump’s shady dealings. Barrett’s and the Voice’s condemnations sparked a brief aborted federal investigation, but they weren’t about to shake the inertia at the most influential outlets, topped by the New York Times. Neither did the late lamented Spy magazine’s bull’s-eye satirical shots at the “short-fingered vulgarian” provoke inquiries, although they did provoke Trump to threaten lawsuits and are said to anger him to this day.

Some of the episodes in Haberman’s later chapters on Trump’s presidency have already stirred controversy. Beneath the buzz, though, many of the richest storylines from the Trump White House, as reported in “Confidence Man” and elsewhere, have a distinctly New York ring. “Where’s my Roy Cohn?” Trump snapped in 2018, in anger at his attorney general, Jeff Sessions, the very conservative former senator from Alabama, who had recused himself from the Justice Department’s investigation into Russian interference in the 2016 election and whom Trump eventually ousted.

Before he was twice impeached, Trump found his man, yet another New York mouthpiece, William Barr, who as attorney general happily did Trump’s bidding in, among other things, lying about the damning Mueller report on the Russian interference — until Trump lost reelection and Barr, well-schooled in transactional loyalty and with his reputation as a supposed “institutionalist” tarnished, declined recruitment into Trump’s coup and at the last minute jumped from the sinking ship. The manic and often antic crimes of Stone, pardoned and unpardoned, add another layer of continuity, a louche link with the old Cohn-centered netherworld.

Haberman’s contribution in Confidence Man, though, is much larger than its arresting anecdotes. Later generations of historians will puzzle over Trump’s rise to national power.

Sean Wilentz, a professor of history at Princeton, is the author, most recently, of “No Property in Man: Slavery and Antislavery at the Nation’s Founding.”

Oct. 8

U.S. Supreme Court Associate Justice Clarence Thomas (Pool photo by Erin Schaff via Getty Images).

Washington Post, Opinion: Justice Thomas should step back from the Mar-a-Lago documents case, Colbert I. King, right, Oct. 8, 2022 (print ed.). Five weeks before the 2020 presidential election, I argued that Justice Clarence Thomas should recuse himself if the Supreme Court had to decide the electoral fates of President Donald Trump and Democratic nominee Joe Biden. That pivotal moment, fortunately, was never reached.

I called for Thomas’s recusal because I believed his impartiality in any such proceeding could be reasonably questioned. Thomas had spelled out his resentment of Biden in his memoir, My Grandfather’s Son, written 16 years after Thomas became a Supreme Court justice. The book delved into his feelings about the treatment he received at the hands of then-Senate Judiciary Committee Chairman Biden during his 1991 confirmation hearings — one of the most acrimonious and polarizing congressional events in decades.

Thomas, simply stated, believes Biden to be untrustworthy and duplicitous. Thomas said so himself: “Senator Biden’s smooth, insincere promises that he would treat me fairly,” he wrote, “were nothing but talk.”

Before the Judiciary Committee’s vote on his nomination, Thomas said the two got on the phone.

“Biden came on the line. I held the receiver sideways so that Virginia could hear him speak as we stood together in the kitchen,” Thomas wrote. Biden explained why he couldn’t vote for him, and Thomas said he replied, “That’s fine. It’s doesn’t matter to me whether I’m confirmed or not. But I entered this process with a good name, and I want to have it at the end.”

“Judge,” Thomas said Biden then told him, “I know you don’t believe me, but if any of these last two matters come up [referring to Anita Hill’s allegations as well as a leaked draft opinion he had written as an appellate judge that had drawn criticism], I will be your biggest defender.”

“He was right about one thing,” Thomas wrote. “I didn’t believe him. Neither did Virginia. As he reassured me of his goodwill, she grabbed a spoon from the silverware drawer, opened her mouth wide, stuck out her tongue as far as she could, and pretended to gag herself.”

In a later documentary, Thomas charged that Biden and the other Democratic senators opposing him viewed him as the “wrong” African American for the high court.

That anti-Biden animus serves as part of my basis for requesting, once again, that Thomas recuse himself. This time, it involves the case brought by Trump over the Biden Justice Department’s investigation of his handling of White House documents. On Tuesday, Trump’s lawyers asked the Supreme Court to intervene in the Mar-a-Lago documents-seizure case. Their petition was filed with Thomas, who oversees emergency requests from the U.S. Court of Appeals for the 11th Circuit. Thomas instructed the Justice Department to file a response to the court by Oct. 11.

With that formality accomplished, Thomas should step out of the picture.

Because, since 2020, the questions about Thomas’s impartiality in any matter that puts Trump and Biden in direct conflict have only deepened — given the involvement of Thomas’s wife in attempts to overturn the 2020 election.

We have learned that Ginni Thomas, as she is best known, actively tried to keep Trump in the White House by participating in attempts to have him, and not Biden, declared the winner. She lent her name to emails sent after the election to legislators in Arizona and Wisconsin urging them to dismiss the popular votes in their states and, instead, choose electors who would cast electoral college votes for Trump.

That grave impropriety would be seen right away as compromising the appearance of a judge’s independence, and thus a disqualification from him hearing the case. But Justice Thomas continues to turn a blind eye to her misconduct, as well as his own stated anti-Biden bent.

Unfortunately, Thomas is off the code-of-conduct hook. Because Supreme Court justices sit on the nation’s court of last resort, their decisions on recusal are not subject to review.

The Judicial Conference’s Code of Conduct applies only to lower federal courts. Chief Justice John G. Roberts Jr., however, insists that all justices should consult the code for their ethical obligations. The code states: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” That is the case, the code states, when “the judge has a personal bias or prejudice concerning a party” in the proceedings.

Thomas’s personal animus against Biden, now so severely exacerbated by Ginni Thomas’s efforts to reverse an election’s outcome, is where the demand for Justice Thomas’s recusal should kick in, yet again.

However, his bullheadedness stands in the way. At the cost of the Supreme Court’s already battered reputation.

Oct. 7

Senior U.S. Circuit Court of Appeals Judge Laurence Silberman speaks at a memorial for the late Supreme Court Associate Justice Antonin Scalia (Associated Press Photo by Susan Walsh).

New York Times, Laurence Silberman, Conservative Touchstone on the Bench, Dies at 86, Sam Roberts, Oct. 6, 2022 (print ed.). From his powerful perch on the D.C. appeals court, he voided gun controls and challenged press freedoms but also upheld the Affordable Care Act.

Laurence H. Silberman, a conservative federal appeals court judge and advocate of judicial restraint whose opinions on guns rights, press freedom, the Affordable Care Act and other crucial issues resonated widely and sometimes presaged Supreme Court decisions, died on Sunday at his home in Washington. He was 86.

His death was announced by of Chief Judge Sri Srinivasan of the United States Court of Appeals for the District of Columbia, where Judge Silberman had sat since he was appointed by President Ronald Reagan in 1985 and where he continued to adjudicate long after he assumed senior status in 2000. His son, Robert, said the cause was an infection.

Judge Silberman was unanimously confirmed by the Senate for six federal posts; was awarded the Presidential Medal of Freedom, the nation’s highest civilian honor, by President George W. Bush in 2008; and three times was shortlisted by Republican presidents for the Supreme Court.

He never got there, but his opinions on the D.C. appeals court, considered one of the most powerful benches in the country, could nevertheless be far-reaching.

Last year, an editorial in The Wall Street Journal described him as “one of the all-time giants of the federal bench” and perhaps “the most influential judge never to have sat on the Supreme Court.”

Judge Silberman defined judicial restraint not as acquiescence but as leaving it to Congress and other representative bodies to legislate and letting the federal courts decide whether those laws pass muster with the Constitution.

In 1988, for example, he wrote in an opinion that the Watergate-era law passed by Congress that allowed for the appointment of special prosecutors was unconstitutional because it interfered with the president’s powers. The Supreme Court disagreed, but the law eventually lapsed anyway.

In 2002, he wrote an opinion upholding a key provision of the post-9/11 Patriot Act that enabled law enforcement and intelligence officers to share information more easily.

In 2007, he ruled that the District of Columbia’s strict gun registration requirements and ban on carrying firearms violated the Second Amendment. In a decision that cheered gun-rights advocates, the Supreme Court momentously agreed with him, holding that bearing arms was an individual right.

And in 2011 he upheld the constitutionality of the Obama administration’s Affordable Care Act, which at the time required people to be insured. He wrote that individuals’ decisions to remain uninsured, in the aggregate, have a substantial effect on interstate commerce and were therefore fair game for federal regulation.

The Supreme Court went on to uphold the act on other grounds (and Congress later removed the insurance requirement), but Judge Silberman was applauded in some circles for his consistency in exercising judicial restraint, even in assessing the constitutionality of an emblematic Democratic initiative.

He was not unwilling to challenge judicial precedents, however.

In 2021, he delivered a scathing dissent in a libel case, urging the Supreme Court to overturn its 1964 ruling in New York Times v. Sullivan. That precedent said that to sustain a claim of libel against a public figure, a plaintiff had to prove that a published statement was known to have been false or was published with reckless disregard for whether it was true.

Arguing for a ruling that would make it easier for public figures to win libel suits, Judge Silberman said that The Times and The Washington Post had become “virtually Democratic Party broadsheets,” that “the news section of The Wall Street Journal leans in the same direction,” that nearly all TV network and cable outlets are “a Democratic Party trumpet,” and that big tech companies censor conservatives.

“Democratic Party ideological control” of the media, he warned, could portend an “authoritarian or dictatorial regime.” His opinion on lowering the bar for libel suits, if not his same reasoning, was later echoed by the Supreme Court justices Neil M. Gorsuch and Clarence Thomas.

Though a conservative paragon, Judge Silberman defied pigeonholing.

As solicitor in the Nixon administration’s Labor Department, he developed timetables for affirmative action, including numerical quotas that he later said he had initially hoped to avoid.

As under secretary of labor, he threatened to quit unless President Richard M. Nixon overruled a White House aide who sought to prevent the nomination of a Black labor expert as the Labor Department’s director for the New York region.

Judge Silberman said in 2017 that he had completed a draft of his memoirs but that they would not be for public consumption.

“If you write anything for publication, you’ve got to be accurate,” he said. “If you write for your grandchildren, you just have to be honest.”

“That’s the only people I care about,” he said.

Oct. 4

This week's new official portrait of the U.S. Supreme Court

New York Times, Supreme Court Leans Toward Alabama in Voting Rights Dispute, Adam Liptak, Oct. 4, 2022. But several members of the court’s conservative majority rejected the state’s most aggressive arguments in defense of its congressional voting map.In Supreme Court arguments on Tuesday, members of the court’s conservative majority seemed to be searching for a narrow way to uphold a congressional map drawn by Alabama lawmakers that a lower court had said diluted the power of Black voters, violating the Voting Rights Act.

Based on their questioning, which was mostly subdued and limited, the court’s conservatives seemed likely to reject some of the state’s most aggressive arguments, which would impose profound new restrictions on how the 1965 act applies in redistricting cases.

Edmund G. LaCour Jr., Alabama’s solicitor general, argued, in essence, that the law was meant to cover only intentional discrimination on the basis of race, a position that was not well received by some of the court’s conservatives.

“My understanding of our cases is that you don’t have to show intent,” said Chief Justice John G. Roberts Jr.

Justice Amy Coney Barrett agreed. “Our precedent and the statute itself says that you don’t have to show discriminatory intent, so put that aside,” she said.

Justice Samuel A. Alito Jr., the most active participant among the court’s conservatives, indicated that Mr. LaCour might have gone too far. “You have made a number of arguments, some of them quite far-reaching,” Justice Alito said, adding that he would focus on whether the voting district at issue was “reasonably configured.”

Justice Clarence Thomas said very little, and Justice Neil M. Gorsuch said nothing at all. Chief Justice Roberts and Justices Barrett and Brett M. Kavanaugh asked mainly neutral questions.

New York Times, On New Term’s First Day, Supreme Court Hears Case on E.P.A.’s Power, Adam Liptak, Oct. 4, 2022 (print ed.). Justice Ketanji Brown Jackson, in her first Supreme Court argument, vigorously questioned a lawyer challenging the agency’s authority.

In its first argument of the Supreme Court’s new term and the first to feature its newest member, Justice Ketanji Brown Jackson, the justices on Monday considered a dispute over the Environmental Protection Agency’s authority to police some kinds of water pollution.

In June, on the final day of its last term, the court limited the E.P.A.’s power to address climate change under the Clean Air Act.

The new case concerned its authority under a different law, the Clean Water Act, which allows the regulation of discharges into what the law calls “waters of the United States.”

The question for the justices was how to determine which wetlands qualify as such waters.

Much of the argument concerned the meaning of the word “adjacent,” which was used in the law to describe covered wetlands.

 Recent Headlines

• New York Times, As New Term Starts, Supreme Court Is Poised to Resume Rightward Push, Adam Liptak
• New York Times, Editorial: The Supreme Court Has a Crisis of Trust
• Washington Post, Editorial: Good on the Supreme Court for keeping live audio. Now it’s time to go further
• Washington Post, Opinion: A partisan Supreme Court is 2022’s other incumbent, E.J. Dionne
• New York Times, Editorial: The Supreme Court Isn’t Listening, and It’s No Secret Why
• Reuters via Yahoo!, U.S. Supreme Court to hear Turkish lender Halkbank's bid to avoid charges
• Washington Post, Supreme Court, dogged by questions of legitimacy, is ready to resume, Robert Barnes

Oct. 2

This week's new official portrait of the U.S. Supreme Court

New York Times, As New Term Starts, Supreme Court Is Poised to Resume Rightward Push, Adam Liptak, Oct. 2, 2022. The justices return to the bench on Monday to hear major cases on affirmative action, voting, race and discrimination against gay couples; The court’s conservative majority seems set to dominate the new term as it did the last one, which ended with bombshell rulings on issues like abortion.

The last Supreme Court term ended with a series of judicial bombshells in June that eliminated the right to abortion, established a right to carry guns outside the home and limited efforts to address climate change. As the justices return to the bench on Monday, there are few signs that the court’s race to the right is slowing.

The new term will feature major disputes on affirmative action, voting, religion, free speech and gay rights. And the court’s six-justice conservative supermajority seems poised to dominate the new term as it did the earlier one.

“On things that matter most,” said Irv Gornstein, the executive director of the Supreme Court Institute at Georgetown Law, “get ready for a lot of 6-3s.”

Several of the biggest cases concern race, in settings as varied as education, voting and adoptions.

They include challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. As in last term’s abortion case, Dobbs v. Jackson Women’s Health Organization, longstanding precedents are at risk.

The court has repeatedly upheld affirmative-action programs meant to ensure educational diversity at colleges and universities, most recently in 2016. In an interview that year, Justice Ruth Bader Ginsburg said the issue had been permanently settled.

In that same interview, though, she said she feared what would happen were Donald J. Trump, then on the campaign trail, to become president.

“For the country, it could be four years,” she said. “For the court, it could be — I don’t even want to contemplate that.”

Mr. Trump went on to name three members of the Supreme Court, including Justice Amy Coney Barrett, who succeeded Justice Ginsburg after her death in 2020.

Those changes put more than 40 years of affirmative action precedents at risk, including Grutter v. Bollinger, a 2003 decision in which the Supreme Court endorsed holistic admissions programs, saying it was permissible to consider race as one factor among many to achieve educational diversity. Writing for the majority in that case, Justice Sandra Day O’Connor said she expected that “25 years from now,” the “use of racial preferences will no longer be necessary.”

The court seems poised to say that the time for change has arrived several years early in the two new cases, Students for Fair Admissions v. Harvard, No. 20-1199, and Students for Fair Admissions v. University of North Carolina, No. 21-707. They are set to be argued on Oct. 31.

The role race may play in government decision-making also figures in a voting rights case to be argued on Tuesday, Merrill v. Milligan, No. 21-1086. The case is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters.

Oct. 1

New York Times, Editorial: The Supreme Court Has a Crisis of Trust, Editorial Board, Oct. 1, 2022. The Supreme Court’s authority within the American political system is both immense and fragile. Somebody has to provide the last word in interpreting the Constitution, and — this is the key — to do so in a way that is seen as fair and legitimate by the people at large.

What happens when a majority of Americans don’t see it that way?

A common response to this question is to say the justices shouldn’t care. They aren’t there to satisfy the majority or to be swayed by the shifting winds of public opinion. That is partly true: The court’s most important obligations include safeguarding the constitutional rights of vulnerable minorities who can’t always count on protection from the political process and acting independently of political interests.

But in the bigger picture, the court nearly always hews close to where the majority of the American people are. If it does diverge, it should take care to do so in a way that doesn’t appear partisan. That is the basis of the trust given to the court by the public.

That trust, in turn, is crucial to the court’s ability to exercise the vast power Americans have granted it. The nine justices have no control over money, as Congress does, or force, as the executive branch does. All they have is their black robes and the public trust. A court that does not keep that trust cannot perform its critical role in American government.

And yet as the justices prepare to open a new term on Monday, fewer Americans have confidence in the court than ever before recorded. In a Gallup poll taken in June, before the court overturned Roe v. Wade with Dobbs v. Jackson Women’s Health Organization, only 25 percent of respondents said they had a high degree of confidence in the institution. That number is down from 50 percent in 2001 — just months after the court’s hugely controversial 5-to-4 ruling in Bush v. Gore, in which a majority consisting only of Republican appointees effectively decided the result of the 2000 election in favor of the Republicans. This widespread lack of confidence and trust in the nation’s highest court is a crisis, and rebuilding it is more important than the outcome of any single ruling.

Chief Justice John Roberts, right, recently suggested that the court’s low public opinion is nothing more than sour grapes by those on the short end of recent rulings. “Simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court,” he said in remarks at a judicial conference earlier in September.

This is disingenuous. The court’s biggest decisions have always angered one group of people or another. Conservatives were upset, for instance, by the rulings in Brown v. Board of Education, which barred racial segregation in schools, and Obergefell v. Hodges, which established a constitutional right to same-sex marriage. Meanwhile, liberals were infuriated by Bush v. Gore and Citizens United v. Federal Election Commission, which opened the floodgates to dark money in politics. But overall public confidence in the court remained high until recently.

The actual cause of its historic unpopularity is no secret. Over the past several years, the court has been transformed into a judicial arm of the Republican Party. This project was taking shape more quietly for decades, but it shifted into high gear in 2016, when Justice Antonin Scalia died and Senate Republicans refused to let Barack Obama choose his successor, obliterating the practice of deferring to presidents to fill vacancies on the court. Within four years, the court had a 6-to-3 right-wing supermajority, supercharging the Republican appointees’ efforts to discard the traditions and processes that have allowed the court to appear fair and nonpartisan.

As a result, the court’s legitimacy has been squandered in the service of partisan victories.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

September

Sept. 29

Justice Amy Coney Barrett and her husband, Jesse Barrett, pose outside the U.S. Supreme Court on the day of her investiture ceremony at the Court (Associated Press photo by J. Scott Applewhite). Justices shield spouses’ work from potential conflict of interest disclosures.

Politico, Justices shield spouses’ work from potential conflict of interest disclosures, Hailey Fuchs, Josh Gerstein and Peter S. Canellos, Sept. 29, 2022. Ginni Thomas, Jane Roberts and Jesse Barrett’s clients remain a mystery, fanning fears of outside influences.

A year after Amy Coney Barrett joined the Supreme Court, the boutique Indiana firm SouthBank Legal opened its first-ever Washington office in Penn Quarter, a move the firm hailed in a 2021 press release as an “important milestone.”

The head of the office, Jesse M. Barrett, is the justice’s husband, whose work is described by the firm as “white-collar criminal defense, internal investigations, and complex commercial litigation.”

SouthBank Legal — which lists fewer than 20 lawyers — has boasted clients across “virtually every industry”: automobile manufacturers, global banks, media giants, among others. They have included “over 25 Fortune 500 companies and over 15 in the Fortune 100,” according to the firm’s website.

But if anyone wants to find out whether Jesse Barrett’s clients have a direct interest in cases being decided by his wife, they’re out of luck. In the Supreme Court’s notoriously porous ethical disclosure system, Barrett not only withholds her husband’s clients, but redacted the name of SouthBank Legal itself in her most recent disclosure.

Over the past year, Virginia Thomas, known as Ginni, has gotten significant attention for operating a consulting business that reportedly includes conservative activist groups with interest in Supreme Court decisions as clients. Her husband, Justice Clarence Thomas, has chosen not to reveal any of his wife’s clients, let alone how much they contributed to the Thomas family coffers, dating back to when her consulting business was founded.

But a Politico investigation shows that potential conflicts involving justices’ spouses extend beyond the Thomases. Chief Justice John Roberts’ wife, Jane Roberts, has gotten far less attention. But she is a legal head-hunter at the firm Macrae which represents high-powered attorneys in their efforts to secure positions in wealthy firms, typically for a percentage of the first-year salary she secures for her clients. A single placement of a superstar lawyer can yield $500,000 or more for the firm.

Mark Jungers, a former managing partner at Major, Lindsey & Africa, the firm that employed Jane Roberts as a legal recruiter before she moved to Macrae, told Politico the firm hired her hoping it would benefit from her being the chief justice’s wife, in part, because “her network is his network and vice versa.”

Roberts lists his wife’s company on his ethics form, but not which lawyers and law firms hire her as a recruiter — even though her clients include firms that have done Supreme Court work, according to multiple people with knowledge of the arrangements with those firms.

Washington Post, Supreme Court, dogged by questions of legitimacy, is ready to resume, Robert Barnes, Sept. 29, 2022. A new term opens with public approval of the court at historic lows and the justices themselves debating what the court’s rightward turn means for its institutional integrity. The Supreme Court begins its new term Monday, but the nation, its leaders and the justices themselves do not appear to be over the last one.

The court’s 6-to-3 conservative majority quickly moved its jurisprudence sharply to the right, and there is no reason to believe the direction or pace is likely to change. This version of the court seems steadfast on allowing more restrictions on abortion, fewer on guns, shifting a previously strict line separating church and state, and reining in government agencies.

If it is the conservative legal establishment’s dream, it has come at a cost.

Polls show public approval of the court plummeted to historic lows — with a record number of respondents saying the court is too conservative — after the right wing of the court overturned Roe v. Wade’s guarantee of a constitutional right to abortion. President Biden is trying to put the court in the political spotlight, hoping the abortion decision’s shock waves rocked the foundation of this fall’s midterm elections, once thought to be a boon to Republicans.

And the justices themselves are openly debating what the court’s rightward turn has meant for its institutional integrity. Chief Justice John G. Roberts Jr. defends his conservative colleagues, with whom he does not always agree, saying unpopular decisions should not call the court’s legitimacy into question.

On the other side, liberal Justice Elena Kagan increasingly is sounding an alarm about the next precedents that could fall and the implications for public perception of the bench.

The court’s new docket offers that potential.

Justices have agreed to revisit whether universities can use race in a limited way when making admission decisions, a practice the court has endorsed since 1978. Two major cases involve voting rights. The court again will consider whether laws forbidding discrimination on the basis of sexual orientation must give way to business owners who do not want to provide wedding services to same-sex couples. And after limiting the Environmental Protection Agency’s authority in air pollution cases last term, the court will hear a challenge regarding the Clean Water Act.

Washington Post, Ginni Thomas falsely asserts to Jan. 6 panel that election was stolen, chairman says, Jacqueline Alemany, Sept. 29, 2022. Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, reiterated her belief that the 2020 election was stolen during her interview Thursday with the committee investigating the Jan. 6, 2021, attack on the U.S. Capitol, according to the committee’s chairman, Rep. Bennie G. Thompson (D-Miss.).

Her false assertion, nearly two years after Joe Biden’s victory, came during a five-hour closed-door interview with the committee.

Ginni Thomas, a conservative activist, drew the attention of the committee after investigators obtained emails between her and lawyer John Eastman, who had advocated a fringe legal theory that Vice President Mike Pence could block the congressional certification of Biden’s electoral college win.

She also repeatedly pressed White House Chief of Staff Mark Meadows to find ways to overturn the election, according to messages she sent to him weeks after the election. The messages represent an extraordinary pipeline between Thomas and one of Trump’s top aides as the president and his allies were vowing to take their efforts all the way to the Supreme Court.

The committee says it may use clips from her appearance, if they are warranted, in a future hearing. But lawmakers have not yet scheduled their next hearing.

Mark Paoletta, an attorney for Thomas, said in a statement that she appeared before the panel “to clear up the misconceptions about her activities surrounding the 2020 elections.”

“As she has said from the outset, Mrs. Thomas had significant concerns about fraud and irregularities in the 2020 election,” the lawyer said. “And, as she told the Committee, her minimal and mainstream activity focused on ensuring that reports of fraud and irregularities were investigated. Beyond that, she played no role in any events after the 2020 election results.”

The panel had previously contemplated issuing a subpoena to compel her testimony.

Sept. 28

U.S. Supreme Court Justice Clarence Thomas sits with his wife, Virginia Thomas, while he waits to speak at the Heritage Foundation on Oct. 21, 2021, in Washington, D.C. (Photo by Drew Angerer via Getty Images).

New York Times, Opinion: The Eagerness of Ginni Thomas, Michelle Cottle, Sept. 28, 2022 (print ed.). Ginni Thomas has become a problem. You don’t have to be a left-wing, anti-Trump minion of the deep state to think it’s a bad look for American democracy to have the wife of a Supreme Court justice implicated in a multitentacled scheme to overturn a free and fair presidential election. But that is where this political moment finds us.

A longtime conservative crusader, Ms. Thomas increasingly appears to have been chin deep in the push to keep Donald Trump in power by any means necessary. Her insurrection-tinged activities included hectoring everyone from state lawmakers to the White House chief of staff to contest the results. She also swapped emails with John Eastman, the legal brains behind a baroque plot to have Vice President Mike Pence overturn the election that may have crossed the line from sketchy into straight-up illegal. Along the way, Ms. Thomas peddled a cornucopia of batty conspiracy theories, including QAnon gibberish about watermarked ballots in Arizona.

Even by the standards of the Trumpified Republican Party, this is a shameful turn of events. And after extended negotiations, Ms. Thomas has finally agreed to voluntarily testify soon before the Jan. 6 House committee. Her lawyer has declared her “eager” to “clear up any misconceptions about her work relating to the 2020 election.”

No doubt we’re all looking forward to her clarifications. But many people would be even more eager to have a bigger question addressed: How is it that someone with such evident contempt for democracy, not to mention a shaky grip on reality, has run amok for so long at the highest levels of politics and government?

The most obvious answer is that Ms. Thomas is married to a very important man. And Washington is a town that has long had to contend, and generally make peace, with the embarrassing or controversial spouses and close kin of its top power players (Martha Mitchell, Billy Carter, Ivanka and Jared…).

But even within this context, Ms. Thomas has distinguished herself with the aggressiveness and shamelessness of her political activities, which she pursues with total disregard for the conflicts of interest that they appear to pose with her husband’s role as an unbiased, dispassionate interpreter of the law.

In another era, this might have prompted more pushback, for any number of reasons. But Ms. Thomas has benefited from a couple of cultural and political shifts that she has shrewdly exploited. One touches on the evolving role of power couples and political spouses. The other, more disturbing, is the descent of the Republican Party down the grievance-driven, conspiracy-minded, detached-from-reality rabbit hole.

If most of America has come around to two-income households, Washington is overrun with bona fide power couples and has fashioned its own set of rules, official and unofficial, for dealing with them. Among these: It is bad form to suggest that a spouse should defer to his or her partner’s career, other than when explicitly required, of course. (A notable exception is the presidency, in which case the first lady is in many ways treated as if it were still 1960.) Though plenty of folks discuss it sotto voce, publicly musing that a couple’s work life might bleed into their home life is considered insulting — even sexist, if the spouse being scrutinized is a woman.

The Thomases have been playing this card for years. Ms. Thomas has forged all sorts of ties with individuals and groups with interests before her husband and his colleagues. In the chaotic aftermath of the 2000 presidential election, she was helping the conservative Heritage Foundation identify appointees for a new Republican administration, even as her husband was deliberating over the outcome of the race. When people grumble about perceived conflicts — or Ms. Thomas’s perpetual political crusading in general — the couple and their defenders complain that they are being held to different standards from others. They are adamant that of course the Thomases can stay in their respective lanes.

• Washington Post, Jan. 6 committee reaches deal with Ginni Thomas for an interview, Jacqueline Alemany and Azi Paybarah, Sept. 22, 2022
• Politico, Ginni Thomas testifies to Jan. 6 panel, Nicholas Wu and Kyle Cheney, Sept. 29, 2022. She came to an agreement with lawmakers last week that paved the way for her testimony.

Sept. 22

Washington Post, Jan. 6 committee reaches deal with Ginni Thomas for an interview, Jacqueline Alemany and Azi Paybarah, Sept. 22, 2022. The House select committee investigating the Jan. 6, 2021, insurrection has reached an agreement with Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, to be interviewed by the panel in coming weeks, according to her attorney and another person familiar with the agreement.

Thomas’s attorney, Mark Paoletta, confirmed the agreement in a statement.

“I can confirm that Ginni Thomas has agreed to participate in a voluntary interview with the Committee,” Paoletta said. “As she has said from the outset, Mrs. Thomas is eager to answer the Committee’s questions to clear up any misconceptions about her work relating to the 2020 election. She looks forward to that opportunity.”

Trump campaign documents show advisers knew fake-elector plan was baseless

CNN was first to report on the agreement.

The committee had earlier announced a public hearing for next week.

The panel had contemplated issuing a subpoena to compel her testimony. Thomas, a longtime conservative activist, had pushed lawmakers and top Republican officials to overturn Joe Biden’s victory in the 2020 presidential election, citing baseless claims of widespread voter fraud.

Her efforts caught the attention of lawmakers and legal scholars who questioned whether it could prompt Clarence Thomas to recuse himself from any cases linked to causes on which his wife had worked.

Ginni Thomas repeatedly pressed White House Chief of Staff Mark Meadows to find ways to overturn the election, according to messages she sent to him weeks after the election. The messages represent an extraordinary pipeline between Thomas and one of Trump’s top aides as the president and his allies were vowing to take their efforts all the way to the Supreme Court.

Sept. 18

Washington Post, Book Review: Former U.S. attorney dishes on how he held line against Trump White House, Barbara McQuade, Sept. 18, 2022 (print ed.). In detailing his ouster from the Southern District of New York, Geoffrey Berman says former attorney general William Barr "was desperate," cites Barr's interference in other investigations.

When then-Attorney General William Barr bungled the firing of Manhattan U.S. Attorney Geoffrey Berman, right, in 2020, we all knew there was more to the story.

Now, in his new book, Holding the Line: Inside the Nation’s Preeminent US Attorney’s Office and Its Battle with the Trump Justice Department, Berman dishes on that clumsy episode and on a range of conflicts with the Department of Justice during his tenure leading the Southern District of New York. Berman names the former DOJ officials who exerted political pressure that he found inappropriate, including Edward O’Callaghan and Jeffrey Rosen. Ultimately, Berman was ousted for the sin of refusing to obey what he believed to be partisan DOJ leadership. “The Department of Justice was not a private law firm dedicated to the president’s personal interests,” he writes, “and it was shameful when they operated as if they were.”

With the storytelling skills of a trial lawyer, Berman describes the episode in which Barr summoned him to Manhattan’s Pierre hotel, “a swanky place where even standard rooms can cost a thousand bucks a night or more.” Barr told Berman that he wanted to replace him at the Southern District of New York (SDNY) with Jay Clayton, the chairman of the Securities and Exchange Commission. Barr even offered Berman a job he apparently thought would be an enticing sweetener: head of the DOJ’s civil division, which represents the United States in all civil lawsuits — a big job but far from the criminal fray. With that job, Barr told Berman, he could “attract clients and build a book of business” for whenever Berman left the DOJ for the private sector. Only after offering him the job did Barr ask whether Berman had any experience in civil law, revealing that the attorney general was not always concerned with the best interests of the department he was entrusted to lead.

Though Berman refused to resign, Barr still issued a news release announcing that Berman was “stepping down” and that, until President Donald Trump could nominate Clayton, the Southern District of New York would be led by Craig Carpenito, the U.S. attorney for New Jersey. Barr bypassed Berman’s deputy, Audrey Strauss, the presumptive choice to serve as acting U.S. attorney. Berman responded with a news release of his own, noting that he was not resigning. His main goal, he writes in “Holding the Line,” was to preserve the office’s independence. The next day, Barr backed down on Carpenito and inserted Strauss into the role of acting head of the office. With Strauss in place, Berman agreed to resign. He concludes: “The truth was that Barr was desperate to get me out of the job I was in, and it was not to put a better US attorney in place. The reasons were perfectly obvious. They were based in politics.”

Berman knew all along that he was living on borrowed time at the SDNY, given his numerous run-ins with the DOJ over what he thought were inappropriate orders from department officials. In one episode that predated Barr’s tenure as attorney general, Berman was investigating Gregory Craig, a former White House counsel for President Barack Obama, for potential violations of the Foreign Agents Registration Act. About two months before the 2018 midterm elections, O’Callaghan called Berman and told him to indict Craig and to do so before Election Day. Berman’s office had recently filed charges in separate cases against a Republican congressman and Trump’s former lawyer Michael Cohen. According to Berman, O’Callaghan had engaged in a heated exchange with the SDNY over the reference in the Cohen indictment to “Individual-1,” which, in context, was an unmistakable reference to Trump. Berman had refused demands to remove it. Now, O’Callaghan said of the Craig case, “It’s time for you guys to even things out.” Berman’s office ultimately declined prosecution. The DOJ sent the case to the D.C. U.S. attorney’s office, which filed the charges. Craig was acquitted at trial.

Berman reserves his strongest criticism for Barr, calling him a bully and his behavior “thuggish.” Upon taking office, Barr tried to “kill” the Southern District’s investigations relating to the campaign finance crimes to which Cohen had pleaded guilty. The reference in plea documents to “Individual-1” made it apparent that Trump faced potential criminal exposure in this investigation. Barr even discussed dismissing Cohen’s conviction in the same way he would later dismiss the false-statements charges against former national security adviser Michael Flynn. In both cases, the defendants had pleaded guilty in open court.

Berman’s book provides a cautionary tale about how political forces can undermine the quest for justice. He’s concerned that power has become centralized in Washington, providing an opportunity for politics to influence decisions. To protect the independence of the 94 U.S. attorney’s offices, he offers some suggestions for reform. For example, he recommends prohibiting DOJ leadership from granting requests by defense counsel to overrule charging decisions made by U.S. attorneys. He further suggests forbidding the DOJ from shopping cases to other districts after they have been declined for prosecution by a U.S. attorney. He also proposes to eliminate prior-approval requirements that U.S. attorneys’ offices must obtain from the DOJ for sensitive investigative steps.

Fortunately, most U.S. attorneys know that their job is to exercise independent judgment and to refuse to take action based on politics. Berman reminds us that to do the job right, you must be willing to resign.

Or in some cases, refuse to do so.

Barbara McQuade is a law professor at the University of Michigan Law School and the former U.S. attorney for the Eastern District of Michigan.

Sept. 17

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

Politico, Opinion: The Supreme Court Is Now Ignoring Precedent It Doesn’t Like, Jeffrey L. Fisher (a law professor at Stanford Law School; co-director of the Stanford Supreme Court Litigation Clinic), Sept. 17, 2022. Along with overturning major decisions, the court is quietly erecting new barricades on rulings they can’t quite throw out. 

The Supreme Court’s recent overruling of Roe v. Wade and other foundational decisions makes clear that key precedents are no longer safe.

But as we take account of the court’s last term and look ahead to the next one, it is critical to understand that the aggressive conservative supermajority has also embraced a new, quieter way of annulling other long-established legal rules — a tactic I call barricading precedent. Any assessment of the court’s fidelity to past judicial decisions should include a tally not just of decisions the court overrules but also those it walls off from any future extensions.

Take Egbert v. Boule, a case last term involving whether federal officers could be held liable for violating a person’s Fourth Amendment right to be free from unreasonable seizure. The Supreme Court held in a previous case that officers could indeed be held liable for conducting unreasonable seizures in the course of “conventional” law-enforcement investigations. And — as Justice Neil Gorsuch “candidly” acknowledged in his separate opinion — the Egbert case bore earmarks of a conventional investigation. At the same time, the six Republican appointees stressed that “if we were called to decide [the previous case] today, we would decline” to recognize this type of liability at all. That created a quandary for those justices: Should they follow the rule of the old case or overrule it?

As it turned out, the court did neither. The court professed to accept the prior decision, but it refused to apply it. The new factual setting, the court held, was itself reason enough to withhold application of disfavored precedent — regardless of how comparable the new setting was.

The court’s conservative justices followed a similar course last term in other cases. In Cummings v. Premier Rehab Keller, the court considered whether recipients of federal funds that discriminate against individuals because of their race, sex or disability must pay damages for any resulting emotional distress. The framework the court established 20 years ago strongly suggested the answer was yes. Justices Brett Kavanaugh and Gorsuch, however, supplied the pivotal votes against the plaintiff on the ground that that framework itself was faulty and thus should never be extended. And in Vega v. Tekoh, Kavanaugh took the same approach to the court’s well-known Miranda rule — the rule requiring police officers to warn suspects in custody before questioning them. He encapsulated his approach to Miranda during the case’s oral arguments as follows: “Accept it, but don’t extend it.”

This approach is as problematic as it is pithy. In the guise of respecting precedent, the new tactic of barricading precedent actually thwarts it.

On one level, many surely welcomed the court’s announcement that it intends to preserve those important decisions. But this declaration also seems to confirm that the court is now comfortable deciding cases on the basis of pure power or will, not just traditional judicial reasoning.

That is cause for great concern. A core feature of the rule of law is that judicial decisions must be worth more than their resolutions of specific controversies in the past. Otherwise, the value of precedent threatens to become nothing more than the degree to which the current members of the court thinks a prior decision is correct — in other words, a system, to invert John Adams’ famous phrase, of men, not laws.

Sept. 15

Politico, Kagan repeats warning that Supreme Court is damaging its legitimacy, Josh Gerstein, Sept. 15, 2022. The justice's pointed comments follow Chief Justice John Roberts' recent lament that unpopular decisions shouldn't undercut the court.

Justice Elena Kagan warned again on Wednesday that unsound reasoning and politically convenient conclusions have infected the Supreme Court’s recent opinions and are doing damage to the court’s standing with the American public.

“When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem,” Kagan said during an event at Northwestern University School of Law.

Kagan, right, has offered similar criticism of the high court on several occasions over the past summer, following its momentous, 5-4 decision in June overturning Roe v. Wade and wiping out a federal constitutional right to abortion that had been recognized for nearly half a century.

However, the recent criticisms from Kagan, an appointee of President Barack Obama and a former Harvard Law School dean, now seem more pointed because they come just days after Chief Justice John Roberts expressed concern publicly that the court’s reputation is being unfairly battered.

“I don’t understand the connection between opinions people disagree with and the legitimacy of the court,” Roberts said on Friday night as he addressed a judicial conference in Colorado. “If the court doesn’t retain its legitimate function, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide of what the appropriate decision is. … Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.”

In her remarks on Wednesday, Kagan did not mention the landmark abortion ruling she dissented from in June, but she did refer to other decisions where, she said, the court had colored outside the lines.

Among them was a ruling the court delivered on the final day of decisions in June, striking down a key element of the Biden administration’s climate change policy on the ground that Congress should have been more explicit if it was granting the Environmental Protection Agency authority over such a “major question.”

Sept. 10

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

Washington Post, Roberts says Supreme Court will reopen to public and defends legitimacy, Robert Barnes and Michael Karlik, Sept. 10, 2022. Chief Justice John G. Roberts Jr. defended the integrity of the Supreme Court on Friday in his first public remarks following a tumultuous term, saying that disagreement with its decisions should not lead to questions about its legitimacy.

“The court has always decided controversial cases and decisions always have been subject to intense criticism and that is entirely appropriate,” Roberts, right, told a gathering of judges and lawyers in Colorado Springs. But he said that disagreement with the court’s role of deciding what the law is has transformed into criticism of its legitimacy.

“You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is,” said Roberts, who added, to laughter, “Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

With the support of three justices chosen by President Donald Trump in the past five years, the Supreme Court now has a 6-to-3 conservative majority. Those justices sent the court on a dramatic turn to the right in the term completed this summer, overturning the guarantee of a constitutional right to abortion in Roe v. Wade, striking a gun control law in New York, limiting the power of the Biden administration to confront climate change, and scoring victories for religious conservatives.

Supreme Court conservatives ignite new era with sweep and speed

The court’s approval rating has dropped to one of its lowest levels ever in public opinion polls, led by unhappy Democrats and by a lesser extent those who view themselves as independent.

But Roberts said it is the Supreme Court’s job to decide what the law is. “That role doesn’t change simply because people disagree with this opinion or that opinion or with a particular mode of jurisprudence,” he said.

Without speaking directly about the court’s decision to overturn nearly 50 years of precedent in striking down Roe, Roberts acknowledged the difficulty of the past year.

“It was gut-wrenching every morning to drive into a Supreme Court with barricades around it,” Roberts said. And it has been “unnatural” to hold oral arguments by teleconference or before a small number of court personnel and reporters. The court has been closed to the public since March 2020 because of worries about the pandemic.

“When we take the bench the first Monday in October at 10 a.m., the public will be there to watch us,” Roberts said. “I think just moving forward from things that were unfortunate is the best way to respond to it.”

Roberts was interviewed by two fellow judges at the Bench & Bar Conference of the U.S. Court of Appeals for the 10th Circuit. He was not asked about one of the things that made the term so contentious: a leaked draft of the Supreme Court’s abortion opinion in Dobbs v. Jackson Women’s Health Organization.

Roberts opens investigation into Supreme Court abortion ruling link

The leak of the draft opinion by Justice Samuel A. Alito Jr. shocked the court, which prides itself on keeping internal deliberations secret. In May, Roberts ordered an investigation into the leak to Politico, but he has said nothing publicly about it since.

Earlier at the same conference in Colorado Springs, Justice Neil M. Gorsuch said the internal investigation was continuing and that he hoped a report would come soon. He did not say whether it would be made public.

Sept. 8

A photo released by the U.S. Department of Justice shows documents allegedly seized at Mar-a-Lago spread over a carpet. (U.S. Department of Justice via AFP and Getty Images).

Washington Post, Justice Dept. appeals judge’s order for a Mar-a-Lago special master, Perry Stein and Devlin Barrett, Sept. 8, 2022. Donald Trump’s lawyers want a special master to shield seized documents that are protected by attorney-client or executive privilege.

The Justice Department said it would appeal a federal judge’s decision to appoint a special master to sift through thousands of documents the FBI seized from Donald Trump’s Florida residence on Aug. 8, according to a Thursday court filing.

The notice of appeal arrived three days after Judge Aileen M. Cannon ruled in favor of Trump and said she would appoint a special master, slowing — at least temporarily — an investigation into the possible mishandling of extremely sensitive classified information, as well as possible hiding, tampering or destruction of government records.

The Justice Department wrote in a brief filing that it would be appealing the decision to the 11th Circuit Court of Appeals.

In a separate, simultaneous court filing, prosecutors asked Cannon to stay her Sept. 5 decision on two key points: her order to temporarily halt a significant portion of the FBI investigation into the potential mishandling of classified information, and to allow a special master to review the classified material that is among the documents seized as part of a court-authorized search at Trump’s Mar-a-Lago club on Aug. 8.

Ultimately, the Justice Department said that a special master could be appointed, but argued that the judge should prohibit the special master from reviewing classified documents. The special master would be still able to sort through personal documents and other items the FBI also seized, setting aside materials as necessary, the filing says.

Prosecutors wrote that allowing a special master to review the classified material would “cause the most immediate and serious harms to the government and the public,” noting that those documents have already been moved to a secure facility, separate from the rest of the seized Trump papers.

And they argued that by prohibiting investigators from using the classified materials found in the August until a special master has cleared them, Cannon could harm national security by hampering the Justice Department’s ability to recover any other classified papers that may still be outstanding.

Barring the FBI from using the classified material in the investigation “could impede efforts to identify the existence of any additional classified records that are not being properly stored—which itself presents the potential for ongoing risk to national security,” prosecutors wrote — the first time they have suggested in court filings that there could be more unsecured classified material they have yet to find.

Trump’s legal team argued in a federal courthouse in West Palm Beach last week that a special master is needed to determine whether any of the documents — more than 100 of which are classified — should be shielded from investigators because of attorney-client or executive privilege. They also said an independent outside expert would boost “trust” in the Justice Department’s criminal probe.

The Justice Department also argued that a former president cannot assert executive privilege after he leaves office, and that it is not possible for one part of the executive branch to assert privilege to shield documents from another part.

But even if Trump could assert executive privilege, the Justice Department argued in its Thursday appeal, the government’s “demonstrated, specific need” to have access to the classified materials would override that privilege. Government prosecutors also said that Trump had no clear need to maintain possession of these classified documents.

“Among other things, the classified records are the very subject of the government’s ongoing investigation,” the filing says.

In her original ruling, Cannon said that the Office of the Director of National Intelligence could continue its analysis of the possible risk to national security posed by the removal from government custody of classified documents, some of which contain the government’s most sensitive intelligence-gathering secrets.

But Justice Department lawyers said Thursday said that it is difficult to separate the FBI investigation from the intelligence review. They said they were unsure of the “bounds” and “implications” of the court order, prompting the intelligence community to temporarily halt its review along with criminal investigators.

The Washington Post reported Tuesday that among the documents seized by the FBI was one describing a foreign government’s military defenses, including its nuclear capabilities, according to people familiar with the situation who spoke on the condition of anonymity. The people also said of the seized documents detail top-secret U.S. operations that are so closely guarded that many senior national security officials are kept in the dark about them.

Sept. 1

United States Supreme Court Justice Clarence Thomas (l) with his wife of thirty-five years, Virginia (Ginni) Thomas (r).

Washington Post, Investigation: Ginni Thomas pressed Wisconsin lawmakers to overturn Joe Biden’s 2020 election win, emails show, Emma Brown, Sept. 1, 2022. The conservative activist and wife of the Supreme Court justice emailed lawmakers in two states in the weeks after the election.

Virginia “Ginni” Thomas, the conservative activist and wife of Supreme Court Justice Clarence Thomas, pressed lawmakers to overturn Joe Biden’s 2020 victory not only in Arizona, as previously reported, but also in a second battleground state, Wisconsin, according to emails obtained under state public-records law.

The Washington Post reported this year that Ginni Thomas emailed 29 Arizona state lawmakers, some of them twice, in November and December 2020. She urged them to set aside Biden’s popular-vote victory and “choose” their own presidential electors, despite the fact that the responsibility for choosing electors rests with voters under Arizona state law.

The new emails show that Thomas also messaged two Republican lawmakers in Wisconsin: state Sen. Kathy Bernier, then chair of the Senate elections committee, and state Rep. Gary Tauchen. Bernier and Tauchen received the email at 10:47 a.m. on Nov. 9, virtually the same time the Arizona lawmakers received a verbatim copy of the message from Thomas. The Bernier email was obtained by The Post, and the Tauchen email was obtained by the watchdog group Documented and provided to The Post.

Thomas sent all of the emails via FreeRoots, an online platform that allowed people to send pre-written emails to multiple elected officials.

August

Aug. 31

New York Times, Opinion: Bill Barr Made the Decision to Clear Trump, and That Should Still Frighten Us, Neal K. Katyal, right, Aug. 31, 2022 (print ed.). The memo released last week by the Justice Department closing the book on the report of Special Counsel Robert Mueller and his inquiry into Russian interference in the 2016 election is a frightening document.

Critics have rightly focused on its substance, slipshod legal analysis and omission of damning facts.

But the process by which that memo, sent in March 2019, came to be is just as worrisome. Delivered to the attorney general at the time, Bill Barr, the memo was written by two political appointees in the Justice Department.

Mr. Barr (above right) used the memo to go around the special counsel regulations and to clear President Donald Trump of obstruction of justice. If left to fester, this decision will have pernicious consequences for investigations of future high-level wrongdoing.

It raises particular concerns because, as a young Justice Department staff member, I drafted the special counsel regulations in 1999 to prevent the exact problem of having partisan political appointees undermine an investigation. The regulations were put in place to ensure that the counsel would make any determination to charge or not and to force the attorney general to overrule those determinations specifically and before Congress.

The 2019 memo tendentiously argued that Mr. Trump committed no crimes — leaving the final decision on the matter to Republican-aligned appointees instead of to the independent special counsel, left.

The challenge in devising the regulations was to develop a framework for the prosecution of high-level executive branch officials — which is harder than it sounds, because the Constitution requires the executive branch to control prosecutions. So we are left with one of the oldest philosophical problems: Who will guard the guardians?

The solution we landed on was to have a special counsel take over the investigative and prosecutorial functions. That counsel was vested with day-to-day independence in an investigation, but the attorney general would still be able to overrule the special counsel — but, crucially, if the attorney general overruled, to report to Congress, to ensure accountability.

The regulations were written with an untrustworthy president in mind, more so than the problem that Mr. Barr presented, which is an untrustworthy attorney general. Unlike presidents, attorneys general are confirmed by the Senate, with a 60-vote threshold — so we assumed they would be reasonably nonpartisan. And we also knew there was no way around the attorney general being the ultimate decider, because the Constitution requires the executive branch to control prosecutions.

We created the role of special counsel to fill a void — to concentrate in one person responsibility and ultimate blame so that investigations would not be covered up from the get-go and to give that person independence from political pressure.

It is outrageous that Mr. Barr acted so brazenly in the face of this framework. The point of requiring a special counsel was to provide for an independent determination of any potential criminal wrongdoing by Mr. Trump.

But the political appointees in his Justice Department took what was the most important part of that inquiry — the decision of whether he committed crimes — and grabbed it for themselves. This was a fundamental betrayal of the special counsel guidelines not for some principle but because it protected their boss, Mr. Trump. It is the precise problem that the regulations were designed to avoid and why the regulations give the counsel “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States attorney.”

Mr. Katyal is a professor at Georgetown University Law Center, was an acting solicitor general in the Obama administration and is a co-author of “Impeach: The Case Against Donald Trump.”

Wayne Madsen Report, Investigative Commentary: Trump's cache of stolen classified files resembles those of America's most notorious spies, Wayne Madsen, left, author of 22 books and former Navy intelligence officer and NSA analyst, Aug. 31, 2022.  Trump's treason may have led to deaths of U.S. informants and intelligence assets in Saudi Arabia and Russia. Trump's cache of stolen classified files resembles those of America's most notorious spies.

Photographic evidence of the classified documents Donald Trump had strewn around Mar-a-Lago presents the U.S. Intelligence Community with the shocking depth and breadth of the compromise by Trump and his associates, Kash Patel and John Solomon, right, of America's most sensitive intelligence.

As damage assessment teams from across 17 U.S. intelligence agencies conduct in-depth analyses of compromised intelligence sources, technical methods, and relationships with foreign intelligence services, federal law enforcement photographic evidence of unprotected classified documents at Mar-a-Lago will give the most seasoned U.S. counterintelligence professional pause.

The cache of documents resembles those seized from America's most notorious spies, including Jonathan Pollard, Robert Hanssen, Aldrich Ames, shown far right in a mug shot, and John Walker.

Aug. 28

New Yorker, Investigative Commentary: Opinion: Justice Alito’s Crusade Against a Secular America Isn’t Over, Margaret Talbot, Aug. 28, 2022.  He’s had win after win—including overturning Roe v. Wade—yet seems more and more aggrieved. What drives his anger?

Some baby boomers were permanently shaped by their participation in the countercultural protests and the antiwar activism of the nineteen-sixties and seventies. Others were shaped by their aversion to those movements. Justice Samuel Alito belongs to the latter category. For many years, he lacked the power to do much about that profound distaste, and in any case he had a reputation for keeping his head down. When President George W. Bush nominated Alito to the Supreme Court, in 2005, many journalists portrayed him as a conservative but not an ideologue. The Times noted that legal scholars characterized his jurisprudence as “cautious” and “respectful of precedent.” Self-described liberals who’d known him—as an undergraduate at Princeton, as a law student at Yale, or in some later professional capacity—sketched portraits of a quiet, methodical, reasonable man.

On the Court, even as Alito’s opinions aligned consistently with the goals of the Republican Party—in particular, of social conservatives—admirers praised him as pragmatic and Burkean. According to a 2018 C-span/P.S.B. poll, he was the conservative Justice the fewest Americans could name, and for years he was overshadowed by his more flamboyant late colleague, Antonin Scalia; by Clarence Thomas, whose notorious confirmation hearings were followed by a rivetingly long silence on the bench; even by Neil Gorsuch, with his cussed libertarian streak. Richard Lazarus, a professor at Harvard Law School who has studied the Court, told me that in Alito’s first years as a Justice he was known primarily as Chief Justice John Roberts’s right-hand man—“someone the Chief could assign to write an opinion” that would not be too flashy or provocative, and that “would keep five votes together when he couldn’t trust Scalia to do it, because Scalia would swing for the fences and risk losing votes.”

Now, though, Alito, left, is the embodiment of a conservative majority that is ambitious and extreme. (He declined to be interviewed for this article.) With the recent additions of Brett Kavanaugh and Amy Coney Barrett to the Court, the conservative bloc no longer needs Roberts to get results. And Alito has taken a zealous lead in reversing the progressive gains of the sixties and early seventies—from overturning Roe v. Wade to stripping away voting rights. At a Yale Law School forum in 2014, he was asked to name a personality trait that had impeded his career. Alito responded that he’d held his tongue too often—that it “probably would have been better if I said a bit more, at various times.” He’s holding his tongue no longer. Indeed, Alito now seems to be saying whatever he wants in public, often with a snide pugnaciousness that suggests his past decorum was suppressing considerable resentment.

Last term, Alito landed the reputation-defining assignment of writing the majority opinion in Dobbs v. Jackson Women’s Health Organization, which eliminated the constitutional right to abortion enshrined by Roe nearly fifty years ago. In May, a draft of his opinion was leaked, and from start to finish it sounded cantankerous and dismissive. “Roe was egregiously wrong from the start,” Alito declared. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.” He likened Roe to Plessy v. Ferguson, the notorious decision upholding segregation; approvingly cited centuries-old common law categorizing a woman who received an abortion after “quickening” as a “murderess”; and used the inflammatory word “personhood” when describing “fetal life.”

It was hardly inevitable that Alito would be assigned the Dobbs opinion. Joan Biskupic, a CNN analyst and the author of a biography of Chief Justice Roberts, right, has reported that Roberts “privately lobbied fellow conservatives to save the constitutional right to abortion down to the bitter end.” Roberts wanted to validate the particular restriction at issue in Dobbs—a Mississippi ban on virtually all abortions after fifteen weeks—but he opposed a wholesale rejection of Roe, which, among other things, had strengthened the notion that a right to privacy was implicit in the Constitution. If Roberts had successfully enlisted, say, the occasionally more moderate Kavanaugh, he would have had the authority to assign the opinion—as the Chief Justice typically does when he is in the majority. Indeed, Roberts might well have written the opinion himself, producing a text that felt more conciliatory than Alito’s—something less openly contemptuous of the Justices who had crafted Roe and its sequel, Planned Parenthood v. Casey, and more mindful of the fact that a majority of Americans support abortion rights. But, Lazarus told me, “it was quite clear coming into conference after the oral argument that Roberts’s rationale was going to be much narrower than what the other five conservative Justices wanted to say.” Given this gulf, Roberts couldn’t insist on writing the main opinion himself. Traditionally, when the Chief Justice isn’t in the majority—or is nominally voting with it but making a substantially different argument—the most senior Justice in the winning bloc assigns the opinion. In this case, that was Thomas, and he chose Alito.

After the draft leaked, many Court observers predicted that, though the opinion’s substance wasn’t likely to change, its tone surely would. It might at least lose a chilling reference to an insufficient “domestic supply” of adoptable infants—a problem that would be fixed, presumably, by forcing more Americans to carry pregnancies to term. But the final version was virtually unchanged, save for the addition of a sharp rebuke to the dissent. (An investigation into the leak is supposedly ongoing; according to Biskupic, clerks were asked to sign affidavits and provide cell-phone records.)

“We saw an emboldened Alito this term,” Lazarus said. “Unlike when he first joined the Court, he no longer needs to curry favor from the Chief.” Roberts’s view of Dobbs was characteristic: he has long favored narrowly tailored opinions that foster consensus among the Justices and, perhaps, avert political chaos. He once observed, “If it’s not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.” Thomas and Alito have adopted a more combative approach—one that finds no great value in privileging precedent, especially if the precedent emanates from the sixties, when Chief Justice Earl Warren was pushing the Court leftward.

Some Justices, attentive to the immediate human risks of revoking the right to abortion, might have at least put on a show of sober humility. No matter how convinced they were that they were correct—and no matter how cognizant they were of having had the last word—they might, in public appearances, have tried not to antagonize the many Americans who think differently. At a minimum, they might have resisted making a gloating joke.

In July, Alito, who is seventy-two, delivered a speech at the Palazzo Colonna, in Rome, for a gathering hosted by the University of Notre Dame Law School’s Religious Liberty Initiative—a conservative group that has filed amicus briefs before the Court. (Faculty affiliated with the group also filed briefs in Dobbs. Legal analysts at Slate noted that the spectacle of a Justice “chumming it up with the same conservative lawyers who are involved in cases before the court creates the unseemly impression of judicial indifference toward basic judicial ethics rules.”) Alito had donned stylish horn-rimmed glasses that he doesn’t usually wear in public, and he had a new, graying beard. Though the speech focussed on one of his favorite topics—the supposed vulnerability of religious freedom in increasingly secular societies—he couldn’t resist crowing about Dobbs. “I had the honor this term of writing, I think, the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders,” Alito said. “One of these was former Prime Minister Boris Johnson—but he paid the price.” (Johnson resigned earlier this summer.)

The audience laughed heartily. “But others are still in office,” Alito continued, suppressing a smile. “President Macron and Prime Minister Trudeau, I believe, are two.” The laughter grew fainter, but Alito was on a roll. It was time for a dad joke about Voldemort: “What really wounded me was when the Duke of Sussex addressed the United Nations and seemed to compare the decision whose name may not be spoken with the Russian attack on Ukraine.” (The Duke of Sussex, more commonly known as Prince Harry, had said, “This has been a painful year in a painful decade,” citing the pandemic, climate change, the war in Ukraine, the spread of disinformation, and the “rolling back of constitutional rights here in the United States.”)

Alito’s smile reappeared. On the bench, he is often serious, even scowling, especially when his liberal colleagues are speaking. But in Rome, taking shots at his critics for the amusement of a like-minded audience, he was living his best life.

Aug. 23

Rolling Stone, Trump Tells His Lawyers: Get ‘My’ Top Secret Documents Back, Asawin Suebsaeng and Adam Rawnsley, Aug. 23, 2022. The ex-president is desperate to recover the classified trove taken from Mar-a-Lago — and is pushing his legal team on a long-shot maneuver to return them.

In the weeks after the FBI’s Mar-a-Lago raid, former President Donald Trump repeatedly made a simple-sounding but extraordinary ask: he wanted his lawyers to get “my documents” back from federal law enforcement.

Trump wasn’t merely referring to the alleged trove of attorney-client material that he insists was scooped up by the feds during the raid, two people familiar with the matter tell Rolling Stone. The ex-president has been demanding that his team find a way to recover “all” of the official documents that Trump has long referred to as “mine” — including the highly sensitive and top secret ones.

Sources close to Trump agree with outside legal experts that such a sweeping legal maneuver would be a long-shot, at best. “I hate to break it to the [former] president, but I do not think he is going to get all [the] top-secret documents back,” says one Trump adviser. “That ship has probably sailed.”

Further, several longtime Trump advisers say they want absolutely nothing to do with the now-infamous boxes of documents, fearing that any knowledge of them could invite an unwanted knock on the door from the feds. “Who would want any of that back? … If it is what they say it is, keep them the hell away,” a second adviser says.

Still, the former president’s legal team appears to be working to retrieve at least some of the papers seized during the Aug. 8 federal search. In recent days, the Trump team — led by former federal prosecutor Evan Corcoran — has been quietly prepping additional legal arguments and strategies to try to pry back material that the feds removed from the ex-president’s Florida abode and club, the sources say. Those measures include drafting a so-called “Rule 41(g) motion,” which allows “a person aggrieved by an unlawful search and seizure of property” to “move for the property’s return,” according to the Federal Rules of Criminal Procedure.

This would be a follow-up measure to the lawsuit, filed Monday by Trump and his attorneys, calling for the appointment of a special master to review the Mar-a-Lago materials for potentially privileged materials. It is unclear when the ex-president’s lawyers plan to file a subsequent motion, which people close to Trump expect to be more narrowly tailored than what the former president apparently wants.

“The motion he already filed is so absolutely terrible, that it’s hard to contemplate him filing something even more aggressive and even more unlikely to succeed,” says Ken White, a criminal defense attorney and former federal prosecutor.

“However,” White added, Trump is “basically trying to litigate the ultimate issue in the case, which is whether he had the right to possess and keep those things, even after he was asked to return them. It’s very unlikely that the court would accept that invitation to litigate that…He would have to prove that those things were illegally taken, and — based on what we know — that is going to be very difficult to prove…He’s going to have to make some very unusual legal arguments, which, if they’re anything like the motion that was just filed, is going to be a very uphill climb.”

Aug. 14

Washington Post, Most abortions are done at home. Antiabortion groups are taking aim, Kimberly Kindy, Aug. 14, 2022. Two top antiabortion groups have crafted and successfully lobbied for state legislation to ban or further restrict the predominant way pregnancies are ended in the United States — via drugs taken at home, often facilitated by a network of abortion rights groups.

In the wake of the Supreme Court’s decision to overturn Roe v. Wade, 14 states now ban or partially ban the use of those drugs, mifepristone and misoprostol, which are used in more than half of all abortions.

But the drugs remain widely available, with multiple groups working to help provide them even to women in states with abortion bans. Students for Life of America and National Right to Life Committee, which have played leading roles in crafting antiabortion laws, hope to change that with new legislation.

The groups are pursuing a variety of tactics, from bills that would ban the abortion-inducing drugs altogether to others that would allow family members to sue medication providers or attempt to shut down the nonprofit groups that help women obtain and safely use the drugs.

Their strategy reflects the reality that abortion access today looks vastly different from that of the pre-Roe world, one without easy access to abortion medications from out-of-state or overseas pharmacies.

“We knew we couldn’t just go back to pre-Roe laws,” said James Bopp Jr., attorney for National Right to Life. “We knew new approaches were needed.”

Both organizations have long opposed medication abortions, but Students for Life’s legislative efforts did not gain traction until 2021, when seven states passed bills modeled after legislation crafted by the group to create legal barriers to the medications. In some cases the laws also banned them from college health clinics. A new wave of these proposals are expected to be introduced — or reintroduced — in statehouses across the country when most legislatures reconvene in January.

Aug. 8

Wall Street Journal, Trump Says Mar-a-Lago Home Raided by FBI Agents, Alex Leary, Sadie Gurman and Aruna Viswanatha, Aug. 8, 2022. Search was part of an investigation into former president’s handling of official records, people familiar with the matter said. The raid was first made public in a statement by Mr. Trump.

Details of the FBI search at former President Donald Trump's Mar-a-Lago resort in Palm Beach, Fla., shown above in an aerial view, weren’t immediately available.

July

July 29

Wayne Madsen Report, Investigative Commentary: Alito undermines U.S. in Rome speech mocking allied leaders, Wayne Madsen, left, July 29-30, 2022. U.S. Supreme Court Associate Justice Samuel Alito took it upon himself to mock the leaders of U.S. allies in a keynote speech delivered on July 21 in Rome, Italy.

Acting like a mobbed-up comedian performing a churlish stand-up routine on the Las Vegas Strip, Alito lambasted foreign leaders for publicly criticizing the Supreme Court's decision to overturn abortion rights previously guaranteed by the 1973 Roe v. Wade case.

Alito displayed a total disregard for judicial temperament and diplomatic protocol expected of Supreme Court justices. Speaking to the 2022 Religious Liberty Summit sponsored by Notre Dame Law School's Religious Liberty Initiative, Alito launched pointed barbs at foreign leaders by name.

Alito stated that one foreign leader, British Prime Minister Boris Johnson, was forced to resign a few days after he criticized the overturning of Roe v. Wade. Crossing into Qanon conspiracy territory, Alito suggested that it was Johnson's criticism of the Supreme Court that led to his resignation. In fact, Johnson remains as caretaker prime minister until a new leader of his Conservative Party is chosen and it was an ethics scandal that drove Johnson to resign, not his comments on the Supreme Court.

Alito also ridiculed the stances taken by French President Emmanuel Macron and Canadian Prime Minister Justin Trudeau in condemning the decision to overturn Roe v. Wade. Alito was particularly scornful of Prince Harry, the Duke of Sussex.

Rather than act like a senior American jurist, Alito chose to emulate other political jabronis, including Florida Governor Ron DeSantis, Montana Governor Greg Gianforte, House Minoroty Whip Steve Scalise, former New Jersey Governor Chris Christie, former acting Homeland Security Secretary Ken Cuccinelli, and former Secretary of State Mike Pompeo.

Alito's comments only serve to embolden Russia, which sees another opportunity to drive a wedge between the members of NATO and the European Union and the United States. The Supreme Court should also investigate whether any of its members, concerned about adverse international reaction to their pending decision to overturn abortion rights, sought foreign signatures on an amicus curiae brief.

If Chief Justice John Roberts has any effective control over what is now a runaway far-right Supreme Court, he should instruct Alito to publicly and in writing apologize to the world leaders he criticized directly by name and indirectly by insinuation.

July 28

HuffPost, Justice Alito Mocks World Leaders Who Criticized Court's Abortion Ruling, Sara Boboltz, July 28, 2022. Supreme Court Justice Samuel Alito used part of the keynote speech on religious liberty he gave last week to joke about the criticisms he received from world leaders for overturning abortion rights in the United States.

Speaking from Rome at an event hosted by Notre Dame Law School, Alito, rigth, said the abortion rights case prompted “a few second thoughts” on his belief that American judges have no business critiquing other countries’ court rulings.

Politico, Court may pare back secrecy in campus sexual misconduct suits, Josh Gerstein, July 28, 2022 (print ed.). At issue is a lower-court judge’s denial of a former MIT student’s request that he and his accuser, another student, be identified by pseudonyms in court filings.

A federal appeals court in Boston heard arguments on Wednesday in a case that could make it harder for students to maintain their anonymity when suing colleges over the handling of complaints related to sexual misconduct.

Lawyers for the Massachusetts Institute of Technology and a former computer engineering student at the prestigious school squared off over a lower-court judge’s denial of the former student’s request that he be allowed to proceed as “John Doe” in the case and that the fellow student who accused him of misconduct also be identified by a pseudonym in court filings.

Attorney Philip Byler told the 1st U.S. Circuit Court of Appeals that the ruling from U.S. District Court Judge Richard Stearns requiring that the plaintiff either file under his true name or dismiss the suit was unfair and contrary to the custom in such cases. “This is the standard practice in the field,” Byler told the three-judge panel. “I think we’re all flabbergasted by what the district judge wrote here.”

A ruling declining to disturb Stearns’ decision stripping secrecy from the case could discourage some suits against colleges and universities over their campus discipline processes, particularly in cases involving allegations of sexual misconduct or sexual assault.

The suit that led to Wednesday’s arguments was filed last year after MIT kicked out a male student accused of having sexual intercourse with a former girlfriend while she was asleep. The school also found the male student engaged in sexual harassment of the same woman, but the breach-of-contract suit alleges that the investigation and the process were severely biased.

Byler said the tradition of allowing parties to proceed by pseudonyms in litigation involving intimate matters goes back decades.

“Roe v Wade has been in the news,” he observed. “That is a case where pseudonymity was recognized.”

Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). 

Washington Post, Opinion: Here’s a test to see whether Supreme Court justices are above the law, Jennifer Rubin, right, July 28, 2022. The 65 Project, a bipartisan group dedicated to disbarring lawyers who filed frivolous cases related to the 2020 election, or who otherwise participated in the coup attempt, has been very busy in recent months.

It filed a series of complaints against advisers of defeated former president Donald Trump, including Jenna Ellis, Boris Epshteyn, Cleta Mitchell, John Eastman and Joseph diGenova, as well as two lawyers who signed on to be fake electors and two lawyers who participated in the events of Jan. 6, 2021.

Now, the group is making its most ambitious move yet: It is filing a specific demand with the Supreme Court to kick Eastman, the chief architect of the coup plot, out of the elite Supreme Court Bar (lawyers eligible to argue in the highest court). And it has requested that Justice Clarence Thomas recuse himself from the disciplinary proceeding because of the role that Thomas’s wife, Ginni Thomas, below, played in the 2020 scheme.

The complaint, made available to me before it was filed, states that Eastman “bolstered and amplified” claims not backed by evidence or the law. It also alleges that Eastman “actively participated in an effort to undermine our elections – a scheme that led to the gravest attack on American democracy since the Civil War.”

The complaint describes five “spokes” in the coup plot, all of which included Eastman. They include litigating the 65 bogus lawsuits; arranging slates of phony electors in seven states; pressuring Vice President Mike Pence to reject electoral votes; pressuring state lawmakers to overturn votes or rescind electors; and summoning “Trump’s supporters to Washington, D.C. and, having spent months lying to them about fraud and a stolen election, sending them to the Capitol, agitated and armed, to stop the electoral vote count.”

After a detailed review of facts revealed in the Jan. 6 hearings and in reporting, the group argues that Eastman’s conduct warrants expulsion from the Supreme Court Bar as well as the loss of his California legal license. The complaint amounts to a handy guide not only to Eastman’s professional violations, but also to facts that might be the basis for criminal charges in state and federal court.

Michael Teter, the 65 Project’s managing director, tells me, “If Mr. Eastman is allowed to continue to remain a member of the highest court in the United States despite the undisputed facts regarding his actions, the American public’s quickly eroding confidence in the Supreme Court will deteriorate even faster.”

But that’s not even the most intriguing part. Citing the obligation for federal judges to recuse themselves from proceedings in which their impartiality “might reasonably be questioned” or in which the judge has personal bias or knowledge of the facts (including spouses with an interest), the complaint asks the Supreme Court — specifically Justice Thomas — to adhere to the rules (which is not mandatory for justices to follow), since the disciplinary matter concerns “public confidence in the judicial system’s integrity.”

The complaint argues that Ginni Thomas “played a significant role in pursuing many of the same post-election strategies as Mr. Eastman.” It recites her text exchanges with then-White House Chief of Staff Mark Meadows and her effort to pressure Arizona lawmakers, including a former Thomas clerk, to overturn the presidential vote. The complaint also notes that Ginni Thomas attended the “Stop the Steal” rally in D.C. on Jan. 6 and later wrote to House Minority Leader Kevin McCarthy (R-Calif.) denigrating the House select committee’s investigation of the attack on the Capitol. (Thomas previously stated she only briefly attended the rally.)

The recusal request concludes:

In short, Ms. Thomas participated in the concerted effort to overturn the 2020 presidential election. She supported Mr. Eastman’s efforts and conferred with him as Mr. Eastman engaged in scheme described by a federal court as a likely criminal conspiracy. She used her relationships with several other of Justice Thomas’s former clerks to further push the effort to subvert American democracy.

July 25

Politico, Cheney: Jan. 6 panel prepared to consider subpoena for Ginni Thomas, Jesse Naranjo, July 24, 2022. “We hope she'll agree to come in voluntarily," said Rep. Liz Cheney (shown above in a file photo).

Rep. Liz Cheney said Sunday the committee investigating the Jan. 6, 2021, attack on the Capitol is prepared to consider subpoenaing Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, if she does not appear voluntarily.

“The committee is engaged with her counsel,” Cheney (R-Wyo.) said in an interview on CNN’s “State of the Union,” when asked if the panel planned to speak with her about efforts to overturn the 2020 election. “We hope she’ll agree to come in voluntarily. The committee is fully prepared to contemplate a subpoena if she does not.”

Cheney is the vice chair of the nine-member panel. Her statement was the most direct indication of the importance the panel attached to the testimony of Virginia Thomas, right, who is known as Ginni and whose lobbying on the election raised ethical questions because of her marriage to the Supreme Court’s current longest-serving justice.

A lawyer for Thomas previously said the conservative activist would not appear voluntarily before the committee. Thomas’ role in efforts to overturn the election made headlines in March when the Jan. 6 panel published text messages between her and former White House chief of staff Mark Meadows in which she urged him to fight harder to challenge the election’s results.

The committee requested testimony from Thomas in June, around the same time as news reports of her communications with White House officials and informal advisers, namely Trump attorney John Eastman, about efforts to overturn the election began to proliferate.

Asked to respond to Cheney’s comments — and whether it sets a dangerous precedent to subpoena the spouse of a high court justice — on CBS’ “Face the Nation,” panel member Adam Schiff (D-Calif.) said: “There are lines that shouldn’t be crossed, but those lines involve sitting Supreme Court jus