U.S. High Courts, Cases 2020-24

 

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

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

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

 

2020-2024

 

May

May 24

ny times logoNew York Times, Opinion: A Federal Judge Wonders: How Could Alito Have Been So Foolish? Michael Ponsor, May 24, 2024. Judge Ponsor is a senior judge on the U.S. District Court for the District of Massachusetts. He was appointed by President Bill Clinton in 1994 after serving 10 years as a federal magistrate judge.

The controversy about the decision to fly an upside-down American flag outside the home of Justice Samuel Alito recalls St. Paul’s admonition that while some things may be lawful, “not all things are helpful.”

In four decades as a federal judge, I have known scores, possibly hundreds, of federal trial and appellate judges pretty well. I can’t think of a single one, no matter who appointed her or him, who has engaged or would engage in conduct like that. You just don’t do that sort of thing, whether it may be considered over the line, or just edging up to the margin. Flying those flags was tantamount to sticking a “Stop the steal” bumper sticker on your car. You just don’t do it.

 

south carolina map

ny times logoNew York Times, Supreme Court Sides With Republicans Over South Carolina Voting Map, Adam Liptak, May 24, 2024 (print ed.). The case concerned a constitutional puzzle: how to distinguish the roles of race and partisanship in drawing voting maps when Black voters overwhelmingly favor Democrats.

The Supreme Court cleared the way on Thursday for South Carolina to keep using a congressional map that a lower court had deemed an unconstitutional racial gerrymander that resulted in the “bleaching of African American voters” from a district.

The vote was 6 to 3, with the court’s three liberal members in dissent.

A unanimous three-judge panel of the Federal District Court in Columbia, S.C., ruled in early 2023 that the state’s First Congressional District, drawn after the 2020 census, violated the Constitution by making race the predominant factor.

The panel put its decision on hold while Republican lawmakers appealed to the Supreme Court, and the parties asked the justices to render a decision by Jan. 1. After that deadline passed, the panel said in March that the 2024 election would have to take place under the map it had rejected as unconstitutional.

 

leonard leo ginny thomas

Republican fund-raiser and U.S. Supreme Court architect Leonard Leo is shown at left in a collage with one of his allies, Ginni Thomas, wife of Justice Clarence Thomas, a major beneficiary of donor largesse.

Letters from an American, Commentary: May 23, 2024 [Alito, Leo and Lincoln's Iconic "House Divided" Speech], Heather Cox heather cox richardsonRichardson, Historian and best-selling author, right, May 24, 2024. 

It turns out that Supreme Court justice Samuel Alito is not the only one flying an “Appeal to Heaven” flag. Leonard Leo, the man behind the extremist takeover of the American judiciary, also flew that flag at his home on Mount Desert Island in Maine.

So now we have the Appeal to Heaven flag, which represents the idea that the 2020 election was stolen, that the people should mike johnson oengage in armed revolution against tyranny, and that the United States should be a nation based in Christian theology, in front of the office of House speaker Mike Johnson (R-LA), right, and over the houses of Supreme Court justice Samuel Alito and the architect of the right-wing theocratic takeover of the federal courts, Leonard Leo.

Abraham Lincoln’s “House Divided” speech of June 16, 1858, is often described as defining the difference between the North, based on the idea of free labor, and the South, based on enslaved labor, and the idea that one or the other must prevail.

abraham lincoln 1860 matthew brady cooper unionBut the speech is much more than a simple depiction of the conflict between freedom and slavery. It details a long-standing plan to destroy American democracy.

Lincoln (shown at left speaking at New York's Cooper Union in an 1860 photo by Matthew Brady) outlined the steps that the United States had taken away from freedom toward tyranny, and noted:

“[W]hen we see a lot of framed timbers…which we know have been gotten out at different times and places and by different workmen—Stephen, Franklin, Roger and James, for instance—and we see these timbers joined together, and see they exactly make the frame of a house… we find it impossible not to believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft drawn up before the first lick was struck.”

Lincoln did not choose the names of his workmen at random. Stephen was Illinois senator Stephen Douglas, who had popularized the idea that local voters should be able to decide whether their territory would permit slavery, no matter what the majority of Americans wanted; Franklin was Franklin Pierce, who had presided over the 1854 Kansas-Nebraska Act permitting enslavement to move into the western territories; Roger was Roger Taney, chief justice of the Supreme Court that decided Dred Scott v. Sandford, saying that Congress could not keep slavery out of the territories; and James was President James Buchanan, who urged Americans to accept the judgment of the Supreme Court. By spreading enslavement westward, that judgment would create new slave states that would work with the southern slave states to make slavery national.

Together, Lincoln said, these four workmen had constructed an edifice to support human enslavement, an edifice working against the nation’s dedication to freedom established by the Declaration of Independence. "A house divided against itself cannot stand,” Lincoln said. “I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved,” he said. “I do not expect the house to fall—but I do expect it will cease to be divided. It will become all one thing, or all the other.”

Today the Supreme Court handed down a decision in the case of Alexander v. South Carolina State Conference of the NAACP. After the 2020 census, when it was clear that a South Carolina district was becoming competitive, the Republican-dominated legislature moved the district lines to cut Black voters out and move white voters in, thereby guaranteeing Democrats would lose. Voting rights advocates sued, saying that moving around voters on the basis of race violated the equal protection clause of the Fourteenth Amendment to the Constitution. A federal district court agreed.

Today, by a vote of 6–3, the Supreme Court overturned the lower court’s decision and signed off on the new South Carolina congressional map that dilutes Black votes. It approved the map because, it said, the gerrymander was politically, rather than racially, motivated. And, it said, “as far as the Federal Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting.”

From now on, as Mark Joseph Stern noted in Slate, it will be virtually impossible for Black voters to prove that lawmakers targeted their race rather than their politics when redistricting, and partisan gerrymandering has just gotten the Supreme Court’s approval (previously, as Stern noted, the court had said federal courts could not intervene even if partisan gerrymandering violates the Constitution; today they said it does not violate the Constitution). Representative James Clyburn (D-SC) said: “Today’s U.S. Supreme Court decision…is further affirmation that this Court has chosen to disenfranchise Black voters and rob us of our fundamental access to the ballot box. Equitable representation is the hallmark of a healthy democracy and in this case, the Supreme Court is attempting to steer the country back to a dark place in our history.”

Justice Samuel Alito wrote the majority opinion.

In a concurring opinion, Justice Clarence Thomas argued that the Supreme Court has no power to redraw district maps at all.

And so, almost exactly 70 years after the Supreme Court unanimously decided Brown v. Board, it appears that the framed timbers designed to reverse the expansion of minority rights are falling into place.

ny times logoNew York Times, Sotomayor Describes Frustration With Being a Liberal on the Supreme Court, Abbie VanSickle, May 25, 2024 (print ed.). In a conversation at Harvard, Justice Sonia Sotomayor spoke of her despair at some of the court’s decisions, but she urged optimism and a focus on future generations.

Some days, after Justice Sonia Sotomayor listens to the Supreme Court announce its decisions, she goes into her chambers, shuts the door and weeps.

“There are days that I’ve come to my office after an announcement of a case and closed my door and cried,” Justice Sotomayor told a crowd on Friday at the Radcliffe Institute at Harvard University, where she was being honored. “There have been those days. And there are likely to be more.”

The comments about the challenges of being a liberal on a court dominated by conservatives came at the tail end of a public conversation with her friend and law school classmate, Martha Minow, a former dean of Harvard Law School and human rights scholar.

The justice set a tone of optimism even as she voiced frustration with some of the court’s rulings, a possible signal that the end of the term, when the most high-profile decisions typically land, could bring more conservative victories. She urged a long-term view of pushing for the values she views as guiding principles — equality, diversity and justice.

“There are moments when I’m deeply, deeply sad,” she said, without citing any specific cases. “There are moments when, yes, even I feel desperation. We all do. But you have to own it, you have to accept it, you have to shed the tears and then you have to wipe them and get up.”

Decisions in dozens of cases are still pending, including on abortion, guns, the free speech rights of social media companies, the regulatory power of government agencies and whether former President Donald J. Trump is immune from prosecution on charges of plotting to overturn the 2020 election.

On a sunny spring day, hundreds gathered under an outdoor tent to hear Justice Sotomayor, including young children carrying Puerto Rican flags, a nod to her roots. The justice, whose parents are Puerto Rican, is the first Latina to serve on the Supreme Court.

The justice said that she had first planned on a career as a detective, prompted not by her interactions with law enforcement in the public housing that formed her world as a child in the Bronx but because of the fictional girl detective Nancy Drew.

X (formerly Twitter) @NormOrnstein, Opinion: Just as stunning as Sam Alito’s open bias and insurrectionist sentiments is his complete lack of shame and his defiance at the revelations and criticism, Norman Ornstein, May 24, 2024. Why? Because he knows that feckless John Roberts will do nothing, the Court’s sham code of ethics is meaningless, Not a single Republican in office will criticize him, and the Senate Democrats are weak and hapless.

X (formerly Twitter) @Laurence Tribe Opinion: Alito serves not for life but during good behavior, Laurence Tribe, May 24, 2024. That’s the language of the constitution. It is settled that any judge or justice that commits high crimes and misdemeanors, that certainly senate democrats logoincludes giving aid and comfort to an insurrection against the Constitution which is close to treason, that any such person is subject to impeachment.

The very fact that the House will not do its duty is not an excuse for the Senate not to at least initiate serious investigation into whether or not impeachable offenses have been committed.

 


Chief Justice John G. Roberts Jr., left, and Associate Justice Samuel A. Alito Jr. sit for a group photo at the Supreme Court in 2022 (Washington Post photo by Jabin Botsford).

Chief Justice John G. Roberts Jr., left, and Associate Justice Samuel A. Alito Jr. sit for a group photo at the Supreme Court in 2022 (Washington Post photo by Jabin Botsford).

washington post logoWashington Post, Democrats press Chief Justice Roberts to address ethics at Supreme Court, Ann E. Marimow, May 24, 2024. Sens. Dick Durbin and Sheldon Whitehouse say flags flown outside the homes of Justice Samuel A. Alito Jr. mean he must recuse himself from Jan. 6-related cases.

Two Democratic senators are calling on Chief Justice John G. Roberts Jr. to take immediate steps to ensure that Justice Samuel A. Alito Jr. does not participate in a pair of Supreme Court cases related to the 2020 presidential election and the Jan. 6, 2021, attack on the U.S. Capitol.

Sens. Dick Durbin (Ill.) and Sheldon Whitehouse (R.I.), who oversee the federal courts in their respective roles as chairmen of the Senate Judiciary Committee and a judicial oversight subcommittee, requested a meeting with Roberts as soon as possible to discuss what they called an “ethics crisis” at the Supreme Court. In their letter, dated Thursday, the senators renewed calls for the high court to strengthen its ethics policy to include an enforcement mechanism.

The court and its governing body, the Judicial Conference of the United States, have the “ability and responsibility to enforce ethics rules applicable to the justices,” they wrote, but “it remains unclear what actions — if any — the judiciary has taken in response to allegations and reporting on ethical misconduct by Supreme Court justices.”

Roberts did not respond to a request for comment through the court’s spokesperson.

The letter from the two senators adds to pressure from dozens of Democratic lawmakers who have questioned Alito’s impartiality after the report of an upside-down American flag outside his home in the Washington suburbs in the days following the Capitol attack. The flag — long used as a sign of distress by the U.S. military — had become a symbol of the “Stop the Steal” movement that falsely claims the 2020 election was stolen from Donald Trump. A second flag carried by Jan. 6 rioters, which has been embraced by Christian nationalists who want to find a greater place for religion in public life, was flown outside Alito’s vacation home last summer, the Times reported this week.

May 23

 

 

samuel alito horizontal headshot

ny times logoNew York Times, Investigation: Another Provocative Flag Was Flown at Another Alito Home, Jodi Kantor, Aric Toler and Julie Tate, May 23, 2024 (print ed.). Last year, Justice Samuel Alito’s beach house displayed a flag with a symbol carried on Jan. 6 and associated with a push for a more Christian-minded government. The “Appeal to Heaven” flag, right, flew outside the Alitos’ New Jersey vacation home last summer, along with a “2022” Phillies flag and a Long Beach Island flag.

The “Appeal to Heaven” flag flew outside the Alitos’ New Jersey vacation home last summer, along with a “2022” Phillies flag and a Long Beach Island flag.Last summer, two years after an upside-down American flag was flown outside the Virginia home of Justice Samuel A. Alito Jr., shown above in a file photo, another provocative symbol was displayed at his vacation house in New Jersey, according to interviews and photographs.

This time, it was the “Appeal to Heaven” flag, which, like the inverted U.S. flag, was carried by rioters at the Capitol on Jan. 6, 2021. Also known as the Pine Tree flag, it dates back to the Revolutionary War, but largely fell into obscurity until recent years and is now a symbol of support for former President Donald J. Trump, for a religious strand of the “Stop the Steal” campaign and for a push to remake American government in Christian terms.

djt maga hatThree photographs obtained by The New York Times, along with accounts from a half-dozen neighbors and passers-by, show that the Appeal to Heaven flag was aloft at the Alito home on Long Beach Island in July and September of 2023. A Google Street View image from late August also shows the flag.

The photographs, each taken independently, are from four different dates. It is not clear whether the flag was displayed continuously during those months or how long it was flown overall.

May 21

ny times logoNew York Times, Opinion: There’s No Sense of Shame at the Supreme Court, Jesse Wegman, May 21, 2024. An earlier generation of Supreme Court justices seemed to possess the capacity for shame.

In 1969, Justice Abe Fortas resigned his seat for accepting a $20,000 consulting fee (which he returned) from a foundation led by a man who was convicted of securities fraud.

Whatever Justice Fortas believed about his honor and morality, he understood that the Supreme Court is an inherently fragile institution and that its nine justices cannot afford the slightest whiff of bias or corruption. As the Times editorial board wrote then, “A judge not only has to be innocent of any wrongdoing but he also has to be above reproach.” Placing the court’s and the country’s interests above his own, Justice Fortas stepped down.

That sort of humility is nowhere in evidence on today’s court, which is finding new ways to embarrass itself, thanks largely to the brazen behavior of two of its most senior members, Justices Samuel Alito (shown above) and Clarence Thomas, who are making a mockery of their obligation to at least appear neutral and independent. They fail to report large gifts, luxury vacations and payments to their family members by wealthy donors, at least one of whom had business before the court, and they express nakedly partisan opinions or fail to adequately distance themselves when their spouses express such views.

They are saying, in effect, that they don’t care if any of this bothers you. To go by recent polls showing that this court’s public approval has approached record lows, it bothers many millions of Americans. And yet no one in Washington seems willing to act.

It can’t go on. The court’s refusal to police itself, willingly allowing a few justices to trample on its reputation, demands that Congress step up and take far stronger action to enforce judicial ethics and to require justices to recuse themselves when they have or appear to have clear conflicts of interest.

The latest in a long list of examples became public last week, when The Times reported that an upside-down American flag flew over the front lawn of the Alito family home in the immediate aftermath of the Jan. 6 insurrection incited by then-President Donald Trump. The flag, a clear pro-Trump statement widely flown by those who believed the 2020 election was stolen, apparently stayed up for days, even as the court was weighing whether to hear a case challenging the outcome of the election. (The court voted not to hear the case. Justice Alito, like Mr. Trump, was on the losing side.)

“If there’s no recusal in this situation, if a justice is flying a banner to support a violent insurrection while he is sitting on a case that implicates the scheme to steal the election, is the recusal statute a dead letter?” Alex Aronson, the executive director of Court Accountability, a judicial reform organization, asked me.

It’s a fair question. The Ethics in Government Act requires the Judicial Conference, which is chaired by Chief Justice John Roberts, to refer to the Justice Department any case in which there is reason to believe a judge willfully broke the law. The attorney general does not have to wait for a referral, but based on how Merrick Garland’s Justice Department handled the Trump investigations, I’m not holding my breath.

The Supreme Court’s recently adopted ethics code isn’t much help, either. If anything, it makes matters worse, undercutting the authority of existing law and giving the justices even more space to act with impunity.

mark wolf recentMark L. Wolf, right, a senior federal district judge in Massachusetts who worked in Gerald Ford’s Justice Department, said in a lecture this year that in adopting the code, “the Supreme Court has essentially asserted the power, if not the right, to disobey laws enacted by Congress and the president. Thus, the code undermines the system of checks and balances that safeguard our constitutional democracy, threatens the impartiality of the Supreme Court and jeopardizes crucial public confidence in the federal judiciary.”

Chief Justice Roberts may not have the power to force any of his colleagues to do the right thing, but he does have moral and institutional authority. And yet it appears the new code of ethics is no match for the old code of omertà that has bound justices for generations. As The Times reported, the Alito flag incident soon became known to the court (where, by the way, regular staff members are barred from any political activity, down to displaying bumper stickers), and yet it was suppressed for more than three years.

washington post logoWashington Post, Opinion: Abortion was already a top issue. Alito made the Supreme Court one, too, Jennifer Rubin, May 21, 2024. A Democratic agenda: Lose the filibuster, reform the court and revive Roe.

Failure to appreciate the salience of the abortion issue is one reason so many pundits, reporters and pollsters wrongly predicted a “red wave” in 2022. It’s one thing to poll a specific congressional race in, say, September; it’s another when voters finally enter the voting booth to register their views.

This year, abortion remains a powerful issue for Democrats. And the focus on abortion might also make the Supreme Court itself a top issue for Democrats in a presidential campaign for the first time in a generation. The radical Supreme Court that reversed Roe v. Wade is increasingly unpopular and scandal-ridden.

The importance of abortion — and, in turn, the Supreme Court responsible for overturning Roe in Dobbs v. Jackson Women’s Health Organization — marks a dramatic shift in the political landscape. In election after election going back to the early 1980s, Republicans used the Supreme Court to gin up their voters on a variety of issues, but especially on abortion. Democrats never really expected abortion access to disappear, so their presidential nominees did not rely as much on the Supreme Court to turn out their base. Now the tables are turned, at the very time the court has made a spectacle of itself.

Angst over the Supreme Court’s serial ethical blunders remind Democrats and Democratic-leaning independents that the problem is not just abortion but the court itself. Justice Samuel A. Alito Jr. — who authored Dobbs and also committed arguably the worst ethical lapse on the court in memory — helps connect the dots for voters.

This month, NPR reported on a Public Religion Research Institute poll showing that abortion rights remain extremely popular in the United States. “Nationwide, 64% percent of voters said abortion should be always or mostly legal; 35% said it should be always or mostly illegal. In most states — including states with Republican-controlled state governments — a majority of voters support legal abortion, and very few favor total bans.” Pro-choice advocates have won every abortion referendum since Dobbs, even in red states such as Ohio and Kansas.

Abortion has outsize importance as an electoral matter, as the poll’s executive summary explains:

May 20

 

Justice Samuel Alito and Martha-Ann Alito at his swearing-in ceremony at the White House in 2006 (Associated Press photo by Charles Dharapak via Washington Post).

Justice Samuel Alito and Martha-Ann Alito at his swearing-in ceremony at the White House in 2006 (Associated Press photo by Charles Dharapak via Washington Post).

The Hartmann Report Commentary: The Supreme Scheme: How Alito & Thomas Are Fueling the Ongoing Trump Coup, Thom thom hartmannHartmann, right, May 20, 2024. Why both Thomas — whose bribng in exchange for his votes on Citizens United and other cases is well documented — and his rightwing buddy Sam Alito must resign or face impeachment.

Supreme Court Associate Justice Sam Alito was just caught red-handed promoting Trump’s fascist “stop the steal” campaign to overthrow the 2020 election and end democracy in America by flying the upside-down flag at his home. He then went on Fox “News” and lied that it was his wife’s fault and that she did it because schoolchildren at a nearby bus stop saw a neighbor’s “F*ck Trump” yard sign.

In fact, as the Lincoln Project’s Steve Schmidt pointed out this past weekend:

“Mrs. Alito was so alarmed by the degradations and profane, yet protected speech that she went immediately home, and inverted the American flag signaling distress. Here’s the problem: there were no school buses and no school children on them in January 2021 in Alexandria, Virginia. Schools in the city were closed for a full year as a result of the pandemic and didn’t re-open until March 2021.”

But Alito’s fingers were apparently far deeper in the January 6th coup attempt than most Americans realize. Trump lawyer Sydney Powell pointed out on Stew Peters’ rightwing YouTube channel that she, Louie Gohmert, and Kari Lake (among others) had filed a lawsuit against Vice President Mike Pence to prevent him from certifying the Electoral College vote on January 6th.

It was a legal attempt to try to do what Trump sent a mob to do when the legal strategy failed:

“We were filing a 12th Amendment constitutional challenge to the process that the Congress was about to use per the Electoral Act provisions that simply don’t jibe with the 12th Amendment to the United States Constitution, and Justice Alito was our circuit court justice for that. Louie Gohmert was the plaintiff in our lawsuit and we were suing the Vice President to follow the 12th Amendment as opposed to the Electoral Count Act.” (emphasis mine)

The 12th Amendment, ratified in 1804, is the provision under which a contested election for president gets thrown to Congress, as happened in the 1876 election where Democrat Sam Tilden got more electoral and popular votes than Republican Rutherford B. Hayes by the first count.

That election ended up thrown to the House because three states had submitted two sets of Electoral College votes (just like Trump’s are fake electors), so Congress cut a deal to end Reconstruction in exchange for making Hayes president, even though he arguably lost the election.

The lawsuit, filed by Gohmert, Kari Lake, and a handful of Republican operatives, demanded the delay so Republicans on the Supreme Court could decide who’d be president, just like they did in the 2000 election. It called for:

“[R]espondent Vice President of the United States to refrain from invoking the dispute-resolution provisions of the Electoral Count Act of 1887 … for the duration of this Court’s consideration of a timely filed petition for a writ of certiorari. As set forth in the argument below, the ECA violates the Electors’ Clause, the Twelfth Amendment, and the Constitution’s structural protections of liberty.”

If Alito would rule that Pence must defer to Congress per the 12th Amendment, the election of 2020 would be thrown to the House with each state having one vote. There, the presidency would have gone to Trump 27-23, because 27 states’ congressional delegations were then controlled by Republicans.

This was not a brand-new or hastily organized plan. I wrote on March 13, 2020 — eight months before the election — that Republicans I knew in Washington DC had informed me that the Trump folks were planning this exact strategy.

And, sure enough, here it was, with Sam Alito as the inside man.

The invasion of the House chamber by the “stop the steal” traitors was, by the theory of this plan, supposed to delay the counting of electoral college votes at least for a day, to give Alito time to act on the next day, January 7th. He and the courts would then rule that the 12th amendment took precedent to law made since then, Congress would declare Trump the winner, and that would be the end of the discussion.

But Nancy Pelosi got wind of the plot and blew it up by re-convening Congress at 8 pm to count the votes, just two hours after the last of the rioters had left the building and before Alito could rule. As Trump‘s senior attorney Powell told Peters:

“Nancy Pelosi had finagled to file an amicus brief in it — there had been inside goings on in Congress where I believe it was Steve Scalise and [Speaker Kevin] McCarthy [who] kept her from being an actual party; she wanted to work herself inside the case as a party but somehow that didn’t happen — so she got notice when we made our filing because she’d filed an amicus brief. And then everything broke loose and she really speeded up reconvening Congress to get the vote [count] going, or [Bill Barr’s] Justice [Department] might have issued an injunction to stop it all, which is what should have happened.”

In the end, Alito had to turn down the lawsuit on the morning of January 7th because Congress had already voted to certify the election for Biden.

As a result, we’ll never know how close we came to having a single corrupt Supreme Court justice overturn the election, but that flag flying outside his house gives us a pretty good clue as to what he may well have done the morning of January 7th had Pelosi not quickly acted the previous evening.

But Alito’s attempts to overturn our democracy weren’t limited to his support for Trump’s treasonous acts on January 6th. Were it not for Alito, Clarence Thomas, and at least two other Republicans on the Court, Donald Trump would by now have almost certainly been convicted in federal Judge Tanya Chutkan’s courtroom of seditiously trying to overthrow our government.

That federal criminal case was rapidly moving along when Trump’s lawyers made the absurd assertion that he was immune from prosecution for his attempted sedition because of a brand new, previously unheard of, and totally bizarre, made-up doctrine of presidential immunity. Even Richard Nixon didn’t have the cojones to try that one: he simply admitted his guilt and accepted a pardon to avoid going to prison.

It only takes four members of the Court to grant certiorari, allowing the Court to hear a case: four or more Republicans on the Court went out of their way to give Trump the delay he desperately needed. On February 28th, they granted cert and scheduled oral arguments for the very last day of their 2023-2024 session, the week of April 22nd.

To add insult to the injury to our republic, in oral arguments Alito dropped this little bomb on America, turning the case against Trump inside-out and claiming Trump should get a free pass to crime all he wanted:

“I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully, if that candidate is an incumbent?

“All right. Now if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?

“And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.”

Thankfully, at least for the historical record, the Attorney representing Jack Smith’s Justice Department, Michael Dreeben, immediately replied:

“I think it’s exactly the opposite, Justice Alito.”

But Alito, not Dreeben, is on the Court and is the decision-maker. Alito thus gave — and continues to give — Trump a desperately needed further delay by slow-walking his own part of the Court’s decision in the Trump immunity case.

Even if they rule against Trump, which everybody assumed would happen before Alito dropped that rhetorical turd into the proceeding, by giving Donny the delay he wanted, the Republicans on the Court reduced the chance that Trump will ever be held to account for his crimes.

While the Court typically releases their decisions during the summer, they have the option of waiting as long as they want — even until well past the November election date. So, if Trump is elected, he can fire Jack Smith and end the prosecution himself.

And it’s not like Alito and Thomas don’t have a stake in this fight. If Biden is re-elected, by the 2028 election Alito will be 78 and Thomas 80. Insiders have speculated that both would like to retire soon and have their replacements appointed by a Republican president.

This fall, the corruption of the Supreme Court by corporate, billionaire, and fossil fuel interests should be at the top of Biden’s re-election campaign: polls show a majority of Americans are horrified by it.

Both Thomas — whose bribe-taking in exchange for his votes on Citizens United and other cases is well documented — and his rightwing buddy Sam Alito must resign or face impeachment. If Republicans could pull it off against a totally innocent Abe Fortas back in the day, Democrats should be able to do it now against two guys whose corruption is obvious to everybody.

Democrats in Congress — particularly on the Senate Judiciary Committee — need to grow a damn spine and make it happen.

washington post logoWashington Post, Opinion: How to save the Supreme Court from Alito’s ethical malfeasance, Jennifer Rubin, right, May 20, 2024. The jennifer rubin new headshotjustice’s unconscionable violations of ethics demand the court be reformed.

Among the Supreme Court’s abominations — shredding precedent to obliterate reproductive freedom, financial impropriety, partisanship — none compares to the upside-down flag, identified with violent insurrectionists, that flew over the home of Justice Samuel A. Alito Jr.

Ethics experts and lawyers (including former judges) of all stripes expressed their outrage. “His statement — which says his wife displayed a symbol associated with a failed coup to subvert democracy because she was offended by an anti-Trump sign one of her neighbors displayed — is so incoherent it is insulting to our collective intelligence,” constitutional law professor Leah Litman emails me. “And a Justice who resides in a house that displays symbols glorifying a coup should not participate in cases that will determine whether people who participated in said coup will face any accountability.”

Alito (alongside Justice Clarence Thomas, whose wife encouraged coup plotters) has heard multiple insurrection-related cases, including the pending immunity case that could absolve Trump of criminal liability. In letting his home stand in solidarity with constitutional arsonists, Alito made a mockery of his oath to “faithfully and impartially discharge” his duties under the Constitution. Any other judge (especially one implicated in financial misconduct) would be compelled to resign and/or face the threat of impeachment. So what about Alito?

Unlike its speedy disposition of the 14th Amendment case (24 days after argument) and of many lesser matters, the court put the immunity case in deep freeze, making it near-impossible to try the ex-president before the next election. The court’s “lollygagging,” Andrew Weissmann and Ryan Goodman describe it in the Atlantic, has already called into question the court’s willingness “to vindicate the public’s right to a speedy trial.” The Alito debacle only deepens the impression that the court has its thumb on the scale — or the brake — for Trump.

To prevent the court’s self-destruction, Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett, plus the three progressives, must end the stalling and promptly render a decisive opinion. They should acknowledge, as Barrett seemed to in oral argument, that Trump’s indictment does not implicate core official conduct justifying presidential immunity. The court therefore need not decide the extent of immunity for all cases (“for the ages,” as Justice Neil M. Gorsuch urged) when official conduct is at issue.

Instead, the court should look at the alleged facts (where Trump had no constitutional role in compiling electoral votes) and “simply hold that the January 6 case can go forward, without resolving the contours of presidential immunity in future cases,” Supreme Court maven Steve Vladeck writes. Concocting some nebulous rule requiring further hearings and/or briefing (begetting another appeal) would open the court up “to charges that, willfully or not, they are necessarily helping Trump.” If they go that route, Roberts and Barrett would implicate themselves in the destruction of their institution.

 

Justice Samuel Alito and Martha-Ann Alito at his swearing-in ceremony at the White House in 2006 (Associated Press photo by Charles Dharapak via Washington Post).

Justice Samuel Alito and Martha-Ann Alito at his swearing-in ceremony at the White House in 2006 (Associated Press photo by Charles Dharapak via Washington Post).

The Hartmann Report Commentary: The Supreme Scheme: How Alito & Thomas Are Fueling the Ongoing Trump Coup, Thom thom hartmannHartmann, right, May 20, 2024. Why both Thomas — whose bribng in exchange for his votes on Citizens United and other cases is well documented — and his rightwing buddy Sam Alito must resign or face impeachment.

Supreme Court Associate Justice Sam Alito was just caught red-handed promoting Trump’s fascist “stop the steal” campaign to overthrow the 2020 election and end democracy in America by flying the upside-down flag at his home. He then went on Fox “News” and lied that it was his wife’s fault and that she did it because schoolchildren at a nearby bus stop saw a neighbor’s “F*ck Trump” yard sign.

In fact, as the Lincoln Project’s Steve Schmidt pointed out this past weekend:

“Mrs. Alito was so alarmed by the degradations and profane, yet protected speech that she went immediately home, and inverted the American flag signaling distress. Here’s the problem: there were no school buses and no school children on them in January 2021 in Alexandria, Virginia. Schools in the city were closed for a full year as a result of the pandemic and didn’t re-open until March 2021.”

But Alito’s fingers were apparently far deeper in the January 6th coup attempt than most Americans realize. Trump lawyer Sydney Powell pointed out on Stew Peters’ rightwing YouTube channel that she, Louie Gohmert, and Kari Lake (among others) had filed a lawsuit against Vice President Mike Pence to prevent him from certifying the Electoral College vote on January 6th.

It was a legal attempt to try to do what Trump sent a mob to do when the legal strategy failed:

“We were filing a 12th Amendment constitutional challenge to the process that the Congress was about to use per the Electoral Act provisions that simply don’t jibe with the 12th Amendment to the United States Constitution, and Justice Alito was our circuit court justice for that. Louie Gohmert was the plaintiff in our lawsuit and we were suing the Vice President to follow the 12th Amendment as opposed to the Electoral Count Act.” (emphasis mine)

 May 18

Meidas Touch Network, Commentary: Justice Alito Pressured To Recuse on 2020 Election Cases After 'Stop The Steal' Symbol Found at His Home, Troy Matthews, May 18, 2024. Another member of SCOTUS now has ties to Trump's insurrectionist movement.

mtn meidas touch networkSenator Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, issued a call for Supreme Court Justice Samuel Alito to recuse himself from any case involving the 2020 election in a statement released Friday. The Senator's statement comes after images were unearthed that showed an upside-down American flag flown at the right-wing justice's Virginia home in January of 2021, in the weeks following the insurrection at the U.S. Capitol.

The upside-down flag was a symbol at the time of the pro-Trump "Stop the Steal" movement which organized the protest on January 6th that turned violent.

“Flying an upside-down American flag—a symbol of the so-called ‘Stop the Steal’ movement—clearly creates the appearance of bias," Durbin's statement reads. "Justice Alito should recuse himself immediately from cases related to the 2020 election and the January 6th insurrection, including the question of the former President’s immunity in U.S. v. Donald Trump, which the Supreme Court is currently considering."

dick durbin speaking screenshot“The Court is in an ethical crisis of its own making, and Justice Alito and the rest of the Court should be doing everything in their power to regain public trust," Durbin, right, continued. "This latest story is further proof that Congress needs to pass the SCERT Act to create an enforceable code of conduct for the Supreme Court. Supreme Court justices should be held to the highest ethical standards, not the lowest.”

Durbin was referring to the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, legislation that the Senate Judiciary Committee advanced last July. The bill would require Supreme Court justices to adopt a binding code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, and require justices to explain their recusal decisions to the public.

Alito claimed the flag was hung at his home by his wife in response to an anti-Trump yard sign posted by one of his neighbors.

"I had no involvement whatsoever in the flying of the flag," Alito told The New York Times in an emailed statement. "It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs."

May 17

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

 

samuel alito house nyt

An upside-down flag, adopted by Trump supporters contesting the Biden victory, flew over Justice Samuel Alito's front lawn (shown above) as the Supreme Court was considering an election case, as reported by the New York Times.

samuel alito horizontal headshot

ny times logoNew York Times, At Justice Samuel Alito’s House, a ‘Stop the Steal’ Symbol on Display, Jodi Kantor, May 17, 2024 (print ed.). After the 2020 presidential election, as some Trump supporters falsely claimed that President Biden had stolen the office, many of them displayed a startling symbol outside their homes, on their cars and in online posts: an upside-down American flag.

One of the homes flying an inverted flag during that time was the residence of Supreme Court Justice Samuel A. Alito Jr., shown above, in Alexandria, Va., according to photographs and interviews with neighbors.

The upside-down flag was aloft on Jan. 17, 2021, the images showed. President Donald J. Trump’s supporters, including some brandishing the same symbol, had rioted at the Capitol a little over a week before. Mr. Biden’s inauguration was three days away. Alarmed neighbors snapped photographs, some of which were recently obtained by The New York Times. Word of the flag filtered back to the court, people who worked there said in interviews.

While the flag was up, the court was still contending with whether to hear a 2020 election case, with Justice Alito on the losing end of that decision. In coming weeks, the justices will rule on two climactic cases involving the storming of the Capitol on Jan. 6, including whether Mr. Trump has immunity for his actions. Their decisions will shape how accountable he can be held for trying to overturn the last presidential election and his chances for re-election in the upcoming one.

“I had no involvement whatsoever in the flying of the flag,” Justice Alito said in an emailed statement to The Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Justice Alito’s impartiality in cases related to the election and the Capitol riot.

The mere impression of political opinion can be a problem, the ethics experts said. “It might be his spouse or someone else living in his home, but he shouldn’t have it in his yard as his message to the world,” said Amanda Frost, a law professor at the University of Virginia.

This is “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases,” she said.

martha ann bomgardner alitoInterviews show that the justice’s wife, Martha-Ann Alito, had been in a dispute with another family on the block over an anti-Trump sign on their lawn, but given the timing and the starkness of the symbol, neighbors interpreted the inverted flag as a political statement by the couple.

The longstanding ethics code for the lower courts, as well as the recent one adopted by the Supreme Court, stress the need for judges to remain independent and avoid political statements or opinions on matters that could come before them.

“You always want to be proactive about the appearance of impartiality,” Jeremy Fogel, a former federal judge and the director of the Berkeley Judicial Institute, said in an interview. “The best practice would be to make sure that nothing like that is in front of your house.”

The court has also repeatedly warned its own employees against public displays of partisan views, according to guidelines circulated to the staff and reviewed by The Times. Displaying signs or bumper stickers is not permitted, according to the court’s internal rule book and a 2022 memo reiterating the ban on political activity.

Asked if these rules also apply to justices, the court declined to respond.

The exact duration that the flag flew outside the Alito residence is unclear. In an email from Jan. 18, 2021, reviewed by The Times, a neighbor wrote to a relative that the flag had been upside down for several days at that point.


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

The official portrait of the U.S. Supreme Court

ny times logoNew York Times, Supreme Court Rejects Conservative Challenge to Consumer Watchdog’s Funding, Adam Liptak, May 17, 2024 (print ed.). A decision against the agency, the Consumer Financial Protection Bureau, could have cast doubt on all of its regulations and enforcement actions.

The Supreme Court rejected a challenge on Thursday to the way the Consumer Financial Protection Bureau is funded, one that could have hobbled the bureau and advanced a central goal of the conservative legal movement: limiting the power of independent agencies.

The vote was 7 to 2, with Justice Clarence Thomas writing the majority opinion.

Had the bureau lost, the court’s ruling might have cast doubt on every regulation and enforcement action it had taken in its 13 years of existence, including ones concerning mortgages, credit cards, consumer loans and banking.

The central question in the case was whether the way Congress chose to fund the bureau had violated the appropriations clause of the Constitution, which says that “no money shall be drawn from the Treasury, but in consequence of appropriations made by law.”

U.S. Associate Supreme Court Justice Clarence Thomas (Pool photo by Erin Schaff via Getty Images).Justice Thomas, right, said the mechanism was constitutional.

“Under the appropriations clause,” he wrote, “an appropriation is simply a law that authorizes expenditures from a specified source of public money for designated purposes. The statute that provides the bureau’s funding meets these requirements. We therefore conclude that the bureau’s funding mechanism does not violate the appropriations clause.”

Justice Samuel A. Alito Jr., joined by Justice Neil M. Gorsuch, dissented.

The bureau, created after the financial crisis as part of the 2010 Dodd-Frank Act, is funded by the Federal Reserve System, in an amount determined by the bureau so long as the sum does not exceed 12 percent of the system’s operating expenses. In the 2022 fiscal year, the agency requested and received $641.5 million of the $734 million available.

A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, ruled in 2022 that the bureau’s funding method ran afoul of the appropriations clause.

“Wherever the line between a constitutionally and unconstitutionally funded agency may be, this unprecedented arrangement crosses it,” Judge Cory T. Wilson wrote in an opinion joined by Judges Don R. Willett and Kurt D. Engelhardt in the ruling. President Donald J. Trump appointed all three judges.

May 16

samuel alito house nyt

An upside-down flag, adopted by Trump supporters contesting the Biden victory, flew over Justice Samuel Alito's front lawn (shown above) as the Supreme Court was considering an election case, as reported by the New York Times.

samuel alito horizontal headshot

ny times logoNew York Times, At Justice Samuel Alito’s House, a ‘Stop the Steal’ Symbol on Display, Jodi Kantor, May 16, 2024. After the 2020 presidential election, as some Trump supporters falsely claimed that President Biden had stolen the office, many of them displayed a startling symbol outside their homes, on their cars and in online posts: an upside-down American flag.

One of the homes flying an inverted flag during that time was the residence of Supreme Court Justice Samuel A. Alito Jr., shown above, in Alexandria, Va., according to photographs and interviews with neighbors.

The upside-down flag was aloft on Jan. 17, 2021, the images showed. President Donald J. Trump’s supporters, including some brandishing the same symbol, had rioted at the Capitol a little over a week before. Mr. Biden’s inauguration was three days away. Alarmed neighbors snapped photographs, some of which were recently obtained by The New York Times. Word of the flag filtered back to the court, people who worked there said in interviews.

While the flag was up, the court was still contending with whether to hear a 2020 election case, with Justice Alito on the losing end of that decision. In coming weeks, the justices will rule on two climactic cases involving the storming of the Capitol on Jan. 6, including whether Mr. Trump has immunity for his actions. Their decisions will shape how accountable he can be held for trying to overturn the last presidential election and his chances for re-election in the upcoming one.

“I had no involvement whatsoever in the flying of the flag,” Justice Alito said in an emailed statement to The Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Justice Alito’s impartiality in cases related to the election and the Capitol riot.

The mere impression of political opinion can be a problem, the ethics experts said. “It might be his spouse or someone else living in his home, but he shouldn’t have it in his yard as his message to the world,” said Amanda Frost, a law professor at the University of Virginia.

This is “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases,” she said.

Interviews show that the justice’s wife, Martha-Ann Alito, had been in a dispute with another family on the block over an anti-Trump sign on their lawn, but given the timing and the starkness of the symbol, neighbors interpreted the inverted flag as a political statement by the couple.

The longstanding ethics code for the lower courts, as well as the recent one adopted by the Supreme Court, stress the need for judges to remain independent and avoid political statements or opinions on matters that could come before them.

“You always want to be proactive about the appearance of impartiality,” Jeremy Fogel, a former federal judge and the director of the Berkeley Judicial Institute, said in an interview. “The best practice would be to make sure that nothing like that is in front of your house.”

The court has also repeatedly warned its own employees against public displays of partisan views, according to guidelines circulated to the staff and reviewed by The Times. Displaying signs or bumper stickers is not permitted, according to the court’s internal rule book and a 2022 memo reiterating the ban on political activity.

Asked if these rules also apply to justices, the court declined to respond.

The exact duration that the flag flew outside the Alito residence is unclear. In an email from Jan. 18, 2021, reviewed by The Times, a neighbor wrote to a relative that the flag had been upside down for several days at that point.

May 11

 

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

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

ny times logoNew York Times, Justice Thomas Denounces ‘the Nastiness and the Lies’ Faced by His Family, Abbie VanSickle, May 11, 2024. It was one of few public remarks Justice Clarence Thomas has made since revelations that he failed to report lavish gifts from conservatives.

Justice Clarence Thomas denounced on Friday “the nastiness and the lies” that have shadowed him in recent years as public scrutiny has mounted over his wife’s efforts to subvert the 2020 election and luxury gifts he has accepted from billionaire friends.

It amounted to some of the most extensive public remarks he has made since revelations that he failed to disclose years of lavish trips from wealthy conservatives, like the Texas real estate magnate Harlan Crow, including on private jets and a superyacht.

“My wife and I, the last two or three years, just the nastiness and the lies,” said Justice Thomas, who did not specify what he was referring to in addressing a full ballroom of lawyers and judges gathered for a judicial conference in Alabama. “There’s certainly been a lot of negativity in our lives, my wife and I, over the last few years, but we choose not to focus on it.”

ginni thomas gage skidmoreThe justice faced calls for recusal after text messages and emails showed that his wife, Virginia Thomas, known as Ginni, sought to overturn the election, appealing to administration officials and lawmakers. Justice Thomas has continued to participate in a number of cases related to the 2020 election, including three about Jan. 6 on the docket this term.

The remarks were part of a wide-ranging conversation at the U.S. Court of Appeals for the 11th Circuit Judicial Conference held at a luxury resort on the waters of Mobile Bay, a shallow inlet of the Gulf of Mexico.

Interviewed by a former clerk, Kathryn Kimball Mizelle, now a federal judge in Florida best known for overturning the Biden administration’s mask mandate, Justice Thomas reminisced about past years on the court, when he said it would have been impossible to imagine anyone leaking opinions. That appeared to be a reference to the 2022 leak of the draft decision in Dobbs v. Jackson Women’s Health Organization eliminating the constitutional right to abortion.

“We may have been a dysfunctional family, but we were a family,” he said. “And it would be inconceivable that anyone would leak an opinion of the court or do anything to intentionally harm one another.”

He expressed frustration with some of the current trends in the federal courts, including the practice of seeking sympathetic judges and the increasing use of emergency petitions that ask the Supreme Court to consider issues quickly.

He said cherry-picking judges, or forum-shopping, had led to situations where “a district judge can issue an injunction for the whole nation.” The emergency docket, where the justices often decide on issues, some of which are extremely consequential, without full briefing or oral argument, “short-circuits our process.”

The justice, who did not take questions and declined an interview request, appeared at ease, laughing and beaming as he pointed out his law clerks in the audience. He repeated several times that he and Ms. Thomas, who sat near the front of the ballroom in a bright pink floral tunic, try to ignore their critics.

“You don’t get to prevent people from doing horrible things or saying horrible things,” the justice said. “But one, you have to understand and accept the fact that they don’t, they can’t change you unless you permit that.”

Justice Thomas returned to many familiar themes, including his reluctance at becoming a judge and then a justice. He said he had never sought, or wanted, a public life but believed it to be his duty.

Before he was appointed to the U.S. Court of Appeals for the D.C. Circuit, he said, “I was thinking of getting out of D.C. I had no interest in being in public life.”

“I wound up in this job,” he said. “And this is, we pray, to do whatever it was that God wanted me to do, what I was being called to do. But being in public life is not something I would have chosen to do.”

He peppered his remarks with references to his childhood in Georgia. He was born in Pin Point, a tiny enclave in the tidal wetlands near Savannah, and then grew up in the city, raised mainly by his grandparents.

He described how he tries to write clearly and plainly, avoiding word play and unnecessary flourishes because he wants those who do not practice the law, like the people he grew up with, to be able to understand the decisions of the Supreme Court.

Before he could finish an anecdote about walking with a friend in his old neighborhood in Georgia, he noted that the memory came from “before they started attacking my friends; I hope I still have some.”

The comment appeared to be a nod to the revelations about Mr. Crow. Justice Thomas has maintained that Mr. Crow is a longtime friend and that he did not act improperly.

Their relationship has raised eyebrows, in part because Mr. Crow purchased the justice’s mother’s home and funded a museum in Pin Point in a former seafood cannery where his mother worked as a crab picker.

Justice Thomas picked up another familiar refrain, detailing how he and Ms. Thomas love traveling in their motor coach because they get to interact with ordinary people.

“Especially in Washington, people pride themselves in being awful,” he said. “It’s a hideous place, as far as I’m concerned. Because the rest of the country, it’s one of the reasons we like R.V.-ing, you get to be around regular people who don’t pride themselves in doing harmful things, merely because they have the capacity to do it.”

He made no mention of an investigation that revealed that he borrowed more than a quarter of a million dollars from a wealthy friend to buy the 40-foot luxury motor coach.

He stressed that one of his long-term goals has been to try to make the court more representative of the country. He said he chooses law clerks from outside Ivy League schools, pointing to Judge Mizelle as an example.

The justice said he felt encouraged by the collegiality of the conference, lamenting how he could no longer mingle with attendees as easily as when he first joined the court.

“I didn’t need so much security back then,” he said.

All of the justices received increased security after the Dobbs leak. Several security officers were positioned around the ballroom and in the hallways.

May 10

 

Kamala Harris Munich Security Conference 2 16 2024

ny times logoNew York Times, Harris Warns of Court’s Future Rulings: ‘I Worry About Fundamental Freedoms,’ Lisa Lerer, May 10, 2024 (print ed.). In an interview with The Times, Vice President Kamala Harris (shown above in a file photo) deepened her criticism of the conservative Supreme Court justices and singled out Clarence Thomas.

Vice President Kamala Harris attacked the conservative-controlled Supreme Court on Wednesday, warning that its future decisions could limit a broad range of civil rights and personal freedoms for many Americans.

In an interview with The New York Times, she expanded on her criticism of the court’s decision to overturn federally guaranteed abortion rights in 2022, going beyond President Biden’s past comments to raise direct alarms about Justice Clarence Thomas and the broader direction of the court.

“This court has shown itself to be an activist court,” said Ms. Harris, who previously served as California’s attorney general and as the district attorney of San Francisco. “I worry about fundamental freedoms across the board.”

Asked what specific legal precedents could be undone by the court, Ms. Harris demurred, saying she was “hesitant” to do so.

“I don’t want to, at this point, use my voice in a way that is alarmist,” she said. “But this court has made it very clear that they are willing to undo recognized rights.”

The interview, conducted after a campaign event focused on abortion rights in Pennsylvania, covered a range of issues related to the court, the 2024 election and the state of American abortion rights. Ms. Harris’s comments went beyond previous criticism of the country’s highest court by the Biden administration, though her remarks were far less scathing than the direct attacks made during the previous administration, when then-President Donald J. Trump went after Justice John Roberts.

In March, Mr. Biden said the justices “made a mistake” and “read the Constitution wrong” in their decision to overturn Roe v. Wade, but he limited his assessment to that specific decision.

When pressed during the interview on Wednesday, Ms. Harris pointed to Justice Thomas’s writings in the case that overturned Roe as an indication of where the court might be headed. In a frank concurring opinion, Justice Thomas wrote that the court should “reconsider” decisions that guaranteed rights to same-sex intercourse and marriage and to contraception.

“You could even look at Clarence Thomas saying a lot of the quiet part out loud,” she said. “Just look at what he said and then maybe that gives us some indication. Just look at one of the justices to see where they might go next.”

During her time as a senator from California, Ms. Harris opposed the confirmation of Justices Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch. Her combative and direct questioning of Mr. Kavanaugh during his contentious confirmation hearings in 2018 helped lift Ms. Harris into the national political spotlight.

Ms. Harris declined to say whether she believed any of the justices had lied during their hearings, when they were asked if Roe was an established legal precedent.

Asked about the presidential race, she said Mr. Trump doesn’t trust women to make their own decisions, but she refused to say whether the former president respects women in any capacity.

She said she judged Mr. Trump based on his conduct, adding that she had never met him personally.

“I don’t know what is in his mind,” she said. “I will say that when you look at Trump abortion bans around the country, those abortion bans suggest that there’s a lack of trust of women to be able to know what’s in their own best interest.”

The vice president predicted a dark future for abortion rights should Mr. Trump be elected again to the presidency. Women’s pregnancies could be monitored in states where abortion is banned to prevent them from obtaining the procedure, she said, and Mr. Trump would sign a national abortion ban if such legislation reached his desk. “I think they might do that,” Mr. Trump said of states’ monitoring of women’s pregnancies in an interview with Time magazine last month. “You’ll have to speak to the individual states.”

May 1

 

 

djt biden resized smilesThe Hartmann Report, Commentary: Would "Dictator" Trump Kill his Rivals? Thom Hartmann, right, May 1, 2024. Trump has thom hartmannunleashed his inner psychopath and if he wins this election it’s going to get uglier here in America than most people today can imagine…

time logo ogTime Magazine reporter Eric Cortellessa spent hours interviewing Donald Trump, producing ashocking cover story this week. Converting one of his opening paragraphs into bullet points for readability, he summarized that Trump fully plans:

— “To carry out a deportation operation designed to remove more than 11 million people from the country, Trump told me, he would be willing to build migrant detention camps and deploy the U.S. military, both at the border and inland.
— “He would let red states monitor women’s pregnancies and prosecute those who violate abortion bans.
— “He would, at his personal discretion, withhold funds appropriated by Congress, according to top advisers.
— “He would be willing to fire a U.S. Attorney who doesn’t carry out his order to prosecute someone, breaking djt maga hatwith a tradition of independent law enforcement that dates from America’s founding.
— “He is weighing pardons for every one of his supporters accused of attacking the U.S. Capitol on Jan. 6, 2021, more than 800 of whom have pleaded guilty or been convicted by a jury.
— “He might not come to the aid of an attacked ally in Europe or Asia if he felt that country wasn’t paying enough for its own defense.
— “He would gut the U.S. civil service, deploy the National Guard to American cities as he sees fit, close the White House pandemic-preparedness office, and staff his Administration with acolytes who back his false assertion that the 2020 election was stolen.”

ICE logoWhile each and every one of Cortellessa’s points gleaned from Trump’s admissions and brags have the potential to transform America into a nation more closely resembling Russia or Saudi Arabia than anything seen here since the violence of the Confederacy, the reporter failed to ask Trump about his most troubling threat: to use assassination as a political weapon the way Putin and MBS do routinely.

Along those lines, CNN and the rest of America learned this past weekend that Bill Barr heard Trump repeatedly call for the murder of people he dislikes, but Barr says he thinks it’s all just bluster. Like that January 6th “bluster” that almost led to Mike Pence and Nancy Pelosi ending up dead, and killed at least eight other individuals, including police officers.

Historians will tell you that dictators throughout history started just this same way, making vague threats to whip up their followers and engaging in “bluster.” And then, when the blood starts flowing, people realized, too late, that they should have been taking that all rhetoric seriously.

Killing his political rivals has been a theme with Donald Trump for years, and now that he’s promising to be a “dictator on day one” and to engage in “revenge” and “retribution” it’s past time to take him seriously.

Back in 2016, he bragged that he could shoot somebody on 5th Avenue and his followers would still vote for him.

Proof, Investigative Commentary: Are Far-Right Insurrectionists Infiltrating the Pro-Ceasefire Protests As Part of the Run-seth abramson graphicUp to the November Political Violence Trump Just Hinted at in Time Magazine? Seth Abramson, left, professor, best-selling Trump biographer and attorney, May 1, 2024. On social media, whispers have become chatter, chatter a chorus of concern. Is some percentage of these Gaza protests attributable to MAGA stagecraft? The evidence of inorganic mass action is growing.

seth abramson proof logoIntroduction: Proof adamantly rejects the post-January 6 conspiracy theorizing of the insurrectionist far right—which, without evidence, said that the armed attack on the United States Capitol that day was both instigated and carried out by FBI agents—so we begin our consideration of the 2024 Gaza Protests by stating unequivocally that a great many of the protesters demanding a ceasefire in the Israel-Gaza War at scores of colleges and universities across America are indeed leftists.

Proof would even add that the overwhelming majority of them are leftists, but candidly—as this report shows—that would be journalistic overreach, as we simply don’t know anything about the majority of the protesters, let alone an “overwhelming” majority.

What we do know is this:

Supporters of Donald Trump have already begun to verbalize online their view that these protests, which have been largely nonviolent, are in fact terrifically violent; that these protests, which are animated first and foremost by a desire to save Gazan children from being killed in a conflict they have nothing to do with, is in fact a domestic terror operation; and that in view of these two false claims, MAGAs are entitled to engage in nationwide political violence if Trump loses this November because they would merely be doing the same as leftists are doing now.

Trump supporters in government are almost universally calling for aggressive law enforcement responses to these largely nonviolent protests, despite knowing that such aggressive responses often lead to violence that would not otherwise have occurred (and despite knowing that government suppression of protected speech is in many cases a free speech violation, which one would expect conservatives to know after years of them falsely calling a free speech issue non-government actors like Twitter engaging in content moderation under their publicly posted Terms of Service).

djt maga hatThe closer a demagogue is to real power in the Trumpist GOP—whether it be Governor Greg Abbott in Texas or Glenn Youngkin in Virginia, Republican Party leaders in Congress like Mike Johnson and Elise Stefanik or the hundreds of online influencers atop the MAGA “movement”—the more likely that person is to be advocating for actions in response to the campus protests that any public policy or law enforcement expert would tell you are far more likely to enflame the situation on college and university campuses in America than resolve them.

Trump just told Time magazine that he cannot promise that his supporters won’t get violent if he loses, and that he will not instruct them to remain peaceful. In fact, Trump, who has consistently said that if he doesn’t win the election handily it by definition was rigged against him, has made clear that the only guarantee of a peaceful transition in 2025 is a Trump victory. All this puts him in a precarious legal position, as he’s already under federal indictment over January 6 at the state and federal levels (and an unindicted co-conspirator in at least Michigan and Arizona so far) but has under six months to prepare his followers for the violence he’s now implicitly expecting of them; how can he incite another armed rebellion without facing new charges? In 2021, he and his followers justified January 6 by pointing to the 2020 George Floyd protests—a miniscule percentage of which became violent when they were infiltrated (per a Just Security report submitted into the congressional record) by organized crime, white supremacists, apolitical anarchists, and suspected 4chan trolls—and seem to be positioning themselves now to justify a second round of post-election violence using the Gaza protests. This means that Trump, his associates inside the Republican Party apparatus, and his rank-and-file followers all see a benefit in the Gaza protests turning violent.

A Supreme Court ruling just upheld the most serious abridgment of Freedom of Assembly in America in generations, though thankfully the decision for now only affects Texas, Mississippi, and Louisiana. Under the new legal regime in these three red states, it only takes one far-right agitator infiltrating a left-wing protest for the leader(s) of that protest to face legal repercussions that could destroy their lives forever. This, despite the evidence that the far right has engaged in exactly these sorts of infiltrations this decade.

Unsurprisingly, this attack on the First Amendment garnered absolutely no complaints whatsoever from supposed far-right First Amendment “absolutists” like Elon Musk. So what does this have to do with the Gaza protests? Well, it means that at many of the campus protests—especially the several now ongoing in Texas and Louisiana—there is a significant potential benefit to far-right agitators who are able to successfully infiltrate the protests that goes well beyond just possible rhetorical cover for post-election violence in November and December of this year, as it also could extend to efforts to decimate the organized left in an election year through new lawsuits targeting left-leaning political organizers.

And it’s in the context of the items above that two further observations must be made:

Benjamin Netanyahu smile TwitterWe don’t know how many American and Israeli Jews now saying that the campus protests are threatening them are supporters of Trump or his friend Benjamin Netanyahu, right. This is not to say that there haven’t been documented instances of antisemitism at some of the now-ongoing Gaza protests, as there certainly have been), but simply that we can’t ignore the context in which these protests are occurring: months of efforts by far-right billionaires to attack higher education through overheated claims of antisemitism against the nation’s top academic institutions, accompanied by a concerted effort by the far-right Likud Party in Israel (and the Trumpist GOP in America) to equate any complaint against the Netanyahu administration with not just antisemitism but terroristic antisemitism. Just recently, Netanyahu described young people in America exercising their constitutional right to free speech en masse as nothing more than the “horrific” actions of “antisemitic mobs” that have (and it’s not clear what he’s actually referring to here) “taken over leading universities [in America]” (emphasis added). Netanyahu went on to lie about what has been happening during these protests, describing a fanciful epidemic of physical “attacks” on Jewish students and faculty and using such an imaginary portrait of ongoing mass violence in America as grounds to compare America in 2024 to “1930s Germany.” Netanyahu calls these exercises of free speech “unconscionable” and demands that they be “stopped”, taking great care to excoriate presumptively left-leaning college administrators and praise presumptively right-leaning government “officials” for their response to the protests (he seems to refer to Governors Abbott and Youngkin particularly). And in his most shameful incitement of all, Netanyahu claimed that the student protesters broadly writ want to “kill Jews wherever they are.” That’s outrageous.

As the data below confirms, over 50% of those participating in the largest campus protests now ongoing have no affiliation with the campuses on which the protests are occurring. To be clear—and as is confirmed below with major-media sourcing—Proof is not saying that the majority of those who are participating in the Gaza protests aren’t students at the colleges and universities where the largest protests are occurring, Proof is saying (again, with the benefit of hard data) that a majority of those at these protests have no affiliation with the campuses on which these protests are occurring whatsoever. They aren’t students or faculty or staff or administrators or longstanding contractors or alumni; they are, in fact, totally anonymous. This means we know nothing about their backgrounds, their motivations, or, yes, even their political affiliations.

So there’s ample data and precedent to support the idea that some number of Trumpist agitators could be infiltrating these protests to discredit them, inflame them, direct them toward violence, build from inside them a supposed precedent for future far-right political violence, direct otherwise peaceful leftists toward actions that could put them out of commission during the upcoming political organizing season, and, above all else, seed within their ranks an utter hatred of President Joe Biden and the Democratic Party that we already know the Republican Party is angling for because it’s more or less all their leaders talk about anymore inside or outside of Washington.

April

April 26

 

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

The official portrait of the U.S. Supreme Court

 

djt indicted proof

ny times logoNew York Times, News Analysis: Conservative Justices Take Argument Over Trump’s Immunity in Unexpected Direction, Adam Liptak, right, April 26, 2024. Thursday’s Supreme Court hearing was memorable for its discussion of coups, assassinations and adam liptakinternments — but very little about the former president’s conduct.

Before the Supreme Court heard arguments on Thursday on former President Donald J. Trump’s claim that he is immune from prosecution, his stance was widely seen as a brazen and cynical bid to delay his trial. The practical question in the case, it was thought, was not whether the court would rule against him but whether it would act quickly enough to allow the trial to go forward before the 2024 election.

Instead, members of the court’s conservative majority treated Mr. Trump’s assertion that he could not face charges that he tried to subvert the 2020 election as a weighty and difficult question. They did so, said Pamela Karlan, a law professor at Stanford, by averting their eyes from Mr. Trump’s conduct.

“What struck me most about the case was the relentless efforts by several of the justices on the conservative side not to focus on, consider or even acknowledge the facts of the actual case in front of them,” she said.

They said as much. “I’m not discussing the particular facts of this case,” Justice Samuel A. Alito Jr. said, samuel alito oinstead positing an alternate reality in which a grant of immunity “is required for the functioning of a stable democratic society, which is something that we all want.”

Immunity is needed, he said, to make sure the incumbent president has reason to “leave office peacefully” after losing an election.

Justice Alito, left, explained: “If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

Justice Ketanji Brown Jackson took a more straightforward approach. “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?” she asked.

Supreme Court arguments are usually dignified and staid, weighed down by impenetrable jargon and focused on subtle shifts in legal doctrine. Thursday’s argument was different.

It featured “some jaw-dropping moments,” said Melissa Murray, a law professor at New York University.

Michael Dorf, a law professor at Cornell, said that “the apparent lack of self-awareness on the part of some of the conservative justices was startling.” He noted that “Justice Alito worried about a hypothetical future president attempting to hold onto power in response to the risk of prosecution, while paying no attention to the actual former president who held onto power and now seeks to escape prosecution.”

In the real world, Professor Karlan said, “it’s really hard to imagine a ‘stable democratic society,’ to use Justice Alito’s word, where someone who did what Donald Trump is alleged to have done leading up to Jan. 6 faces no criminal consequences for his acts.”

Indeed, she said, “if Donald Trump is a harbinger of presidents to come, and from now on presidents refuse to leave office and engage in efforts to undermine the democratic process, we’ve lost our democracy regardless what the Supreme Court decides.”

The conservative justices did not seem concerned that Mr. Trump’s lawyer, D. John Sauer, said his client was free during his presidency to commit lawless acts, subject to prosecution only after impeachment by the House and conviction in the Senate. (There have been four presidential impeachments, two of Mr. Trump, and no convictions.)

 

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

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

washington post logoWashington Post, Opinion: Oral argument on immunity hints at another Trump trial — but not soon, Ruth Marcus, April 26, 2024 (print ed.). If there was any chance of Donald Trump being prosecuted before the next presidential election for trying to interfere in the previous one, that prospect looks even more dim after nearly three hours of oral argument at the Supreme Court on Thursday.

The conservative justices’ professed concerns over the implications of their rulings for imaginary future presidents, in imaginary future proceedings, seemed more important to them than bringing Trump to justice.

First, there is certainly no prospect of a speedy decision. The issues as hashed out before the justices, and the evident division among them, all but guarantee there will be no ruling until the court finishes up its work in late June or early July.

April 25

Meidas Touch Network, Commentary: .Conservative Justices Signal Support for States Defying Emergency Abortion Exceptions, Troy Matthews, April 25, 2024. Several States are hedging on providing exceptions for abortions for medical necessity.

mtn meidas touch networkThe U.S. Supreme Court heard oral arguments on a federal challenge to Idaho's total abortion ban law on Wednesday, during which the conservative Justices on the court seemed skeptical that states with total abortion bans are violating federal emergency healthcare protections.

Shortly after the Dobbs v. Jackson Supreme Court decision in June 2022 which overturned Roe v. Wade, the Biden Administration issued direction that the Emergency Medical Treatment and Active Labor Act (EMTALA), a law which governs doctors' actions in an emergency room, can effectively overrule state abortion bans and allow doctors to perform an abortion if the mother's life is in danger.

Under EMTALA, hospitals that accept Medicare must provide emergency care, including abortions, to patients regardless of their ability to pay. Idaho maintained before the court they held their own standards of care for medical emergencies that should not be subject to federal rules.

During arguments, conservatives on the court repeatedly pushed back on the Biden Administration's interpretation of EMTALA, expressing skepticism in a one-size-fits-all federal requirement for emergency medical treatment.

Conservative Justice Samuel Alito, who wrote the opinion overturning Roe v. Wade, seemed to side with Idaho stating, “How can you impose restrictions on what Idaho can criminalize, simply because hospitals in Idaho have chosen to participate in Medicare?"

Counsel for Idaho Joshua N. Turner maintained that Idaho does require doctors to intervene in cases where the life of the mother is threatened, but could not directly define what that meant. Idaho and other total abortion ban states seem to hold to the standard that a woman must be on the verge of death before a doctor can perform an abortion as an intervention, which forces to doctors to refuse interventions even when an abortion is clearly required based on their own medical judgement.

The liberal Justices on the court, Ketanji Brown Jackson, Sonia Sotomayor, and Elena Kagan, seemed horrified that Idaho was hedging on the emergency abortion exception, citing several real life examples of women who were denied abortion care by doctors who were unsure their case met the standard for an emergency abortion and were sent home, only to suffer severe side-effects including hemorrhaging and eventual hysterectomies as a result of delaying care.

Justice Amy Coney Barrett said she was "kind of shocked" to hear Idaho hedging on permitting abortion to save fertility. Turner maintained that doctors in Idaho were permitted to use "good faith judgements" in such cases, but Coney Barrett then presented the crux of the medical exception question: "What if a prosecutor thinks differently," she asked, highlighting the fact that abortion bans put the authority to determine who may receive an abortion in the hands of prosecutors and judges, not doctors.

Idaho's abortion ban imposes penalties of up to five years in prison for performing abortions without exceptions for rape or incest.

Given the history of this Supreme Court's interpretation on abortion rights, it does not seem farfetched that they may rule that states have the right to impose their own criminal standard for abortions, including prosecuting doctors for performing an abortion even if it is to save the life of the mother.

Meidas Touch Network, Commentary: Conservative Justices Signal Support for States Defying Emergency Abortion Exceptions, Troy Matthews, April 25, 2024. Several States are hedging on providing exceptions for abortions for medical necessity.

mtn meidas touch networkThe U.S. Supreme Court heard oral arguments on a federal challenge to Idaho's total abortion ban law on Wednesday, during which the conservative Justices on the court seemed skeptical that states with total abortion bans are violating federal emergency healthcare protections.

Shortly after the Dobbs v. Jackson Supreme Court decision in June 2022 which overturned Roe v. Wade, the Biden Administration issued direction that the Emergency Medical Treatment and Active Labor Act (EMTALA), a law which governs doctors' actions in an emergency room, can effectively overrule state abortion bans and allow doctors to perform an abortion if the mother's life is in danger.

Under EMTALA, hospitals that accept Medicare must provide emergency care, including abortions, to patients regardless of their ability to pay. Idaho maintained before the court they held their own standards of care for medical emergencies that should not be subject to federal rules.

During arguments, conservatives on the court repeatedly pushed back on the Biden Administration's interpretation of EMTALA, expressing skepticism in a one-size-fits-all federal requirement for emergency medical treatment.

Conservative Justice Samuel Alito, who wrote the opinion overturning Roe v. Wade, seemed to side with Idaho stating, “How can you impose restrictions on what Idaho can criminalize, simply because hospitals in Idaho have chosen to participate in Medicare?"

Counsel for Idaho Joshua N. Turner maintained that Idaho does require doctors to intervene in cases where the life of the mother is threatened, but could not directly define what that meant. Idaho and other total abortion ban states seem to hold to the standard that a woman must be on the verge of death before a doctor can perform an abortion as an intervention, which forces to doctors to refuse interventions even when an abortion is clearly required based on their own medical judgement.

The liberal Justices on the court, Ketanji Brown Jackson, Sonia Sotomayor, and Elena Kagan, seemed horrified that Idaho was hedging on the emergency abortion exception, citing several real life examples of women who were denied abortion care by doctors who were unsure their case met the standard for an emergency abortion and were sent home, only to suffer severe side-effects including hemorrhaging and eventual hysterectomies as a result of delaying care.

Kagan also discussed the ramifications for women who seek abortions not just to save their own lives, but also to save their fertility, in cases when a miscarriage may damage reproductive organs. The Idaho standard does not necessarily permit abortions in such cases.

“Within these rare cases, there’s a significant number where the woman’s life is not in peril, but she’s going to lose her reproductive organs. She’s going to lose the ability to have children in the future unless an abortion takes place,” Kagan said.

Justice Amy Coney Barrett said she was "kind of shocked" to hear Idaho hedging on permitting abortion to save fertility. Turner maintained that doctors in Idaho were permitted to use "good faith judgements" in such cases, but Coney Barrett then presented the crux of the medical exception question: "What if a prosecutor thinks differently," she asked, highlighting the fact that abortion bans put the authority to determine who may receive an abortion in the hands of prosecutors and judges, not doctors.

Idaho's abortion ban imposes penalties of up to five years in prison for performing abortions without exceptions for rape or incest.

Given the history of this Supreme Court's interpretation on abortion rights, it does not seem farfetched that they may rule that states have the right to impose their own criminal standard for abortions, including prosecuting doctors for performing an abortion even if it is to save the life of the mother.

ny times logoNew York Times, On Emergency Abortion Access, Justices Seem Sharply Divided, Abbie VanSickle, April 25, 2024 (print ed.).  The case, which could reverberate beyond Idaho to over a dozen other states with abortion bans, is the second time in less than a month that the justices have heard an abortion case.

The Supreme Court appeared sharply divided on Wednesday over whether Idaho’s near-total abortion ban overrides a federal law that protects patients who need emergency care in a case that could determine access to abortions in emergency rooms across the country.

In a lively argument, questions by the justices suggested a divide along ideological lines, as well as a possible split by gender on the court. Justice Amy Coney Barrett, a conservative, appeared skeptical that Idaho’s law, which bars doctors from providing abortions unless a woman’s life is in danger or in cases of ectopic or molar pregnancies, superseded the federal law.

The argument also raised a broader question about whether some of the conservative justices, particularly Justice Samuel A. Alito Jr., may be prepared to embrace language of fetal personhood, that is, the notion that a fetus would have the same rights at the pregnant woman.

The clash between the Idaho and federal laws affects only the sliver of women who face dire medical complications during pregnancy. But a broad decision by the court could have implications for about 14 states that have enacted near-total bans on abortion since the court overturned a constitutional right to abortion in June 2022.

The dispute is the second time in less than a month that the Supreme Court is grappling with abortion. It is a potent reminder that even after Justice Alito vowed in 2022 that the issue of abortion would return to elected representatives in Dobbs v. Jackson Women’s Health Organization, it continues to make its way back to the court. In late March, the justices considered the availability of the abortion pill mifepristone.

The federal law at issue, the Emergency Medical Treatment and Labor Act, or EMTALA, enacted by Congress in 1986, mandates that hospitals receiving federal funds provide patients with stabilizing care.

The Biden administration maintains that this law collides with — and should override — Idaho’s near-total abortion ban. Under the state law, the procedure is illegal except in cases of incest, rape or when it is “necessary to prevent the death of the pregnant woman,” and doctors who perform abortions could face criminal penalties. Lawyers for the state contend that the administration has maneuvered the federal law in a way that would bypass state bans.

April 22

ny times logoNew York Times, Justices Appear to Side With City Trying to Regulate Homeless Encampments, Abbie VanSickle, April 22, 2024. A group of people in an Oregon city challenged local laws banning sleeping in public. The Supreme Court appeared split along ideological lines in the case.

A majority of the Supreme Court appeared inclined on Monday to uphold a series of local ordinances that allowed a small Oregon city to ban homeless people from sleeping or camping in public spaces.

The justices appeared split along ideological lines in the case, which has sweeping implications for how the country deals with a growing homelessness crisis. The conservative majority appeared sympathetic to arguments by the city of Grants Pass, Ore., that homelessness is a complicated issue that is best handled by local lawmakers and communities, not judges.

The liberal justices, for their part, pushed back strongly on that notion in impassioned questioning.

The case reflects a broader fight over regulating homelessness and the complexity of balancing the civil rights of homeless people with concerns about health and safety in public spaces.

The issue has united people across the political spectrum, with some leaders of left-leaning cities and states joining with conservative groups to urge the justices to clarify the extent of their legal authority in clearing encampments that have proliferated across the West in recent years.

The question before the justices is whether those laws went so far that they punished people for being homeless and violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

A group of homeless residents is challenging the city’s enforcement of the ordinances as unconstitutional, arguing that they are involuntarily homeless in the city because there are not shelter beds available and that the city may not punish them without offering shelter.

City officials in Grants Pass counter that this is a fundamental misunderstanding of the Eighth Amendment. They warn that a ruling in favor of the plaintiffs would fuel homeless encampments across the country and hamstring the ability of local governments to respond.

Politico, Supreme Court to take up Biden crackdown on ‘ghost guns,’ Josh Gerstein, April 22, 2024. The case is expected to be set for argument in the fall.

politico CustomThe Supreme Court has agreed to decide whether the Biden administration acted legally when it implemented a crackdown on the sale of do-it-yourself “ghost gun” kits.

The justices announced Monday that they will take up a regulation Attorney General Merrick Garland issued in 2022 that sought to consider such kits as firearms so they can’t be used to make untraceable weapons sold without background checks and frequently used in crimes.

The New Orleans-based 5th Circuit Court of Appeals upheld a lower court’s injunction against the rule, concluding that the Bureau of Alcohol, Tobacco and Firearms appeared to have exceeded its statutory authority when trying to rein in the circulation of ghost guns.

Last August, the Supreme Court voted, 5-4, to allow the Biden administration to implement the regulation while legal challenges to it continued. Chief Justice John Roberts and Justice Amy Coney Barrett joined the court’s three liberals in granting the federal government’s request to proceed with the rule.

The high court’s latest action was expected because only four justices are needed to grant review in a case, and the four dissenters on last year’s emergency stay application would have the power to do that. The court does not typically disclose which justices voted to hear a case.

The ghost gun case is expected to be set for argument in the fall, with a decision likely after the presidential election in November.

April 17

ny times logoNew York Times, Supreme Court Hears Obstruction Case That Could Bar Some Charges Against Trump, Adam Liptak, April 17, 2024 (print ed.). The justices are considering whether a 2002 law prompted by white-collar fraud applies to former President Trump and his election subversion case.

The Supreme Court is hearing arguments on Tuesday in a case that could eliminate some of the federal charges against former President Donald J. Trump in the case accusing him of plotting to subvert the 2020 election and could disrupt the prosecutions of hundreds of rioters involved in the Capitol attack.

The question for the justices is whether a provision of the Sarbanes-Oxley Act, enacted in the wake of the collapse of the energy giant Enron, covers the conduct of a former police officer, Joseph W. Fischer, who participated in the Capitol assault, on Jan. 6, 2021.

The law figures in two of the federal charges against Mr. Trump in his election subversion case and more than 350 people who stormed the Capitol have been prosecuted under it. If the Supreme Court sides with Mr. Fischer and says the statute does not cover what he is accused of having done, Mr. Trump is almost certain to contend that it does not apply to his conduct, either.

The law, signed in 2002, was prompted by accounting fraud and the destruction of documents, but the provision is written in broad terms. Still, in an earlier case involving a different provision of the law, the Supreme Court said it should be tethered to its original purpose.

At least part of what the law meant to accomplish was to address a gap in the federal criminal code: It was a crime to persuade others to destroy records relevant to an investigation or official proceeding but not to do so oneself. The law sought to close that gap.

It did that in a two-part provision. The first part makes it a crime to corruptly alter, destroy or conceal evidence to frustrate official proceedings. The second part, at issue in Mr. Fischer’s case, makes it a crime “otherwise” to corruptly obstruct, influence or impede any official proceeding.

ny times logoNew York Times, A few Jan. 6 rioters have been freed ahead of the Supreme Court’s review of the law, Alan Feuer, April 17, 2024 (print ed.). The Supreme Court’s decision to consider the soundness of an obstruction law that has been widely used against those who took part in the attack on the Capitol on Jan. 6, 2021, is already having an effect on some of the rioters.

A small group of people convicted under the law have been released from custody — or will soon go free — even though the justices hearing arguments on Tuesday are not expected to decide the case for months.

Over the past several weeks, federal judges in Washington have agreed to release about 10 defendants who were serving prison terms because of the obstruction law, saying the defendants could wait at home as the court determined whether the law should have been used at all to keep them locked up.

Among those already free is Matthew Bledsoe, the owner of a moving company from Tennessee who scaled a wall outside the Capitol and then paraded through the building with a Trump flag, ultimately planting it in the arm of a statue of President Gerald R. Ford.

Soon to be released are defendants like Kevin Seefried, a drywall installer from Delaware who carried a Confederate flag through the Capitol, and Alexander Sheppard, an Ohio man who overran police lines to become one of the first people to break into the building.

The interrupted sentences — which could be reinstated depending on how the Supreme Court rules — are just one of the complications to have emerged from the court’s review of the obstruction statute, known in the penal code as 18 U.S.C. 1512. The charge has been used so far against more than 350 rioters, including Jacob Chansley, the so-called QAnon Shaman, and members of the far-right extremist groups the Proud Boys and the Oath Keepers.

April 1

 

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

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

washington post logoWashington Post, Opinion: What we have learned about the Supreme Court’s right-wingers, Jennifer Rubin, right, April 1, 2024.jennifer rubin new headshot Supreme Court observers frequently refer to its right-wing majority of six as a single bloc. However, differences among those six have become more apparent over time. Justices Samuel A. Alito Jr.’s and Clarence Thomas’s extreme judicial activism, partisan screeds and ethics controversies put them in a category unto themselves. Meanwhile, Justice Amy Coney Barrett has demonstrated surprising independence.

Not all Republican-appointed judges are the same. In Trump v. Anderson (concerning disqualification under Section 3 of the 14th Amendment of four-times-indicted former president Donald Trump), for example, Barrett, along with Justices Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor, criticized the maximalist majority opinion, which held that not only could state courts not determine disqualification but that Congress had to act before any candidate could be disqualified from federal office.

Like the so-called liberal justices, Barrett was disinclined to address “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.” The court decided too much, she agreed. Her complaint with the so-called liberal justices was primarily tonal. (“This is not the time to amplify disagreement with stridency.”)

Beyond her opinions in high-profile cases, Barrett also sought to repair the court’s reputation damaged by right-wing partisanship. She has started appearing alongside Sotomayor publicly to insist that the court’s ideological combatants are sandra day oconnor omore collegial than they might appear. Perhaps she is.

Barrett is no Sandra Day O’Connor (a true swing justice), left. Barrett was just as extreme on Roe v. Wade as the other right-wingers. Nevertheless, her efforts to carve an independent niche on the court should not be ignored.

On the other hand, there is no limit to what Justices Alito and Thomas will do.

samuel alito frowing uncredited

In contrast to Barrett, no right-wing theory or activist invitation is too wacky for Alito, above, and Thomas to entertain.

 

March, 2024

March 28

 

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

United States Supreme Court Justice Clarence Thomas (l) with his wife, Virginia (Ginni) Thomas (r).

ny times logoNew York Times, How Justice Clarence Thomas’s ‘Nearly Adopted Daughter’ Became His Law Clerk, Steve Eder and Abbie VanSickle, March 28, 2024. Justice Clarence Thomas gave Crystal Clanton a home and a job after she left a conservative youth organization in controversy. Then the justice picked her for one of the most coveted positions in the legal world.

The email went out to members of Justice Clarence Thomas’s law clerk network late last month celebrating his newest addition to an exclusive club. The justice’s selection needed no introduction.

“Crystal Clanton’s clerkship for OT ’24 was announced by Scalia Law today!” wrote an assistant to Virginia Thomas, the justice’s wife, who is known as Ginni. The email referred to the 2024 October term of the court, and the tone was jubilant: “Please take a look at these posts of congratulations and support. Consider reposting, replying or adding your own!”

The Thomases and Ms. Clanton, a 29-year-old conservative organizer turned lawyer, have built such a close relationship that the couple informally refer to her as their “nearly adopted daughter.” Ms. Clanton, who was previously accused of sending racist text messages, including one that read “I HATE BLACK PEOPLE,” has lived in the Thomas home, assisted Ms. Thomas in her political consulting business and joined her in a “girls trip” to New York.

March 26

 

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

The official portrait of the U.S. Supreme Court

washington post logoWashington Post, Supreme Court skeptical of limiting access to abortion pill, Staff Reports, March 26, 2024. The Supreme Court on Tuesday seemed skeptical of efforts to limit access to mifepristone, a key medication used in more than 60 percent of U.S. abortions and first approved more than two decades ago.

supreme court graphicA majority of justices from across the ideological spectrum questioned whether the antiabortion doctors challenging the government’s loosening of regulations have sufficient legal grounds — or standing — to bring the lawsuit.

During oral argument, the government and the drug company that makes the medication emphasized the safety of the drug but also focused much of their arguments on standing.

erin hawleyErin Hawley, left, lawyer for Alliance for Hippocratic Medicine, argued that mifepristone is dangerous, even though multiple studies have shown it to be overwhelmingly safe. She says that if complications emerge from medication abortions, antiabortion doctors are forced to choose between helping a woman with a life-threatening condition and violating their conscience.

The justices are examining rule changes in 2016 and 2021 that, among other things, made the drug available by mail and from a medical provider other than a doctor.

ny times logoNew York Times, Supreme Court Poised to Hear Arguments About Abortion Pill Access, Abbie VanSickle, March 26, 2024. The justices’ decision could cut off prescriptions by telemedicine and pills sent by mail, and also have implications for the regulatory authority of the F.D.A.

supreme court graphicThe Supreme Court is expected on Tuesday to weigh the availability of a commonly used abortion pill, raising the possibility that it could sharply curtail access to the drug — even in states where abortion access remains legal.

The case means that abortion is once again before the court, less than two years after a conservative majority eliminated the constitutional right to abortion and said it would cede the question of access “to the people and their elected representatives.”

A decision by the justices, expected by late June, could cut off prescriptions by telemedicine and pills sent by mail, two changes in recent years that broadened distribution. It could also have implications for the regulatory authority of the Food and Drug Administration, potentially calling into question the agency’s ability to approve and distribute other drugs.

The current challenge involves mifepristone, a drug approved by the F.D.A. more than two decades ago that is used in nearly two-thirds of abortions in the country. At issue is whether the agency acted appropriately in expanding access to the drug in 2016 and again in 2021.

The court is also expected to consider whether the plaintiffs, a group of anti-abortion doctors and organizations, can show that they will suffer concrete harm if the pill remains widely available. Lawyers call this requirement standing.

ny times logoNew York Times, The Woman Arguing Against the Pill, Elizabeth Dias and Abbie VanSickle, March 26, 2024. Erin Hawley, right, a law professor and the wife of Senator Josh Hawley, is set to argue for sharply curtailing access to the abortion pill.

erin hawleyIt was 2014, and Erin Morrow Hawley was fighting against the egg-laying hens of Missouri. Specifically, a new requirement that chicken cages have enough space for the hens to stand up, turn around and stretch out.

A law professor from five generations of ranchers and the wife of Senator Josh Hawley, Ms. Hawley joined a challenge to California, which required more spacious enclosures for hens laying eggs to be sold there. The state where she taught, Missouri, sold a third of its eggs to California, and Ms. Hawley believed that a blue state had no right to impose its values and rules on Missouri’s farmers.

She joined in a lawsuit against California’s attorney general at the time, Kamala Harris. A judge found that the challengers could show no direct injury and dismissed the case. Ms. Hawley continued teaching, and Ms. Harris became Joe Biden’s vice president.

Ten years later, Ms. Hawley, 44, is now at the center of one of the country’s most heated cultural battles about bodily autonomy, gender roles and abortion. On Tuesday, for the first time since the overturning of Roe v. Wade, the Supreme Court will once again consider nationwide limits on abortion access. And Ms. Hawley is slated to be the woman standing before the justices, arguing to sharply curtail access to the abortion pill.

The case centers on the Food and Drug Administration’s approval of mifepristone, a commonly available drug used in the majority of abortions in the country. Limiting medication abortion is a next frontier for the anti-abortion movement in the post-Roe era.

Ms. Hawley represents a group of anti-abortion doctors and an umbrella group of conservative medical associations that claim that the abortion pill — approved more than two decades ago — is a danger to women. The F.D.A. has pointed to substantial scientific evidence that the medication abortion is safe.

Ms. Hawley views the cause as similar to her fights against government interference, rooted in her experience of ranch life.

ny times logoNew York Times, The future of access to abortion may turn on a basic legal question: Who can sue? Abbie VanSickle and Pam Belluck March 26, 2024. Among the anti-abortion doctors involved in the case before the Supreme Court seeking to restrict availability of the pill is Dr. Christina Francis, who leads one of the anti-abortion groups suing the Food and Drug Administration to curtail distribution of the drug, mifepristone. She says she has experienced moral injury in treating patients who have taken the medication.

Left unclear is whether that reaches a necessary threshold to bring a lawsuit in federal court — that the plaintiffs would suffer concrete harm if mifepristone remained widely available. Lawyers call this requirement standing.

The F.D.A. “is forcing me to be complicit in an action that I have a moral objection to,” Dr. Francis, who is the head of the American Association of Pro-Life Obstetricians and Gynecologists, said in an interview on Friday.

Those statements are echoed by other anti-abortion doctors involved in the lawsuit, including an Indiana doctor and state legislator who has called for stronger punishments for abortion providers and a California doctor who helped pioneer an abortion pill reversal method that has not been supported by scientific evidence.

None of the anti-abortion doctors are required to prescribe the drugs or regularly treat abortion patients, but they say that they might encounter such patients in emergency rooms and that even treating side effects could cause them hardship. That, they say, would subject them to “enormous stress and pressure,” forcing them to choose between their consciences and their professional obligations.

ny times logoNew York Times, The fate of mifepristone is now back on the doorstep of the Supreme Court. Here is what’s at stake, Pam Belluck and Abbie VanSickle, March 26, 2024 (print ed.). The Biden administration had asked the justices to hear a challenge to the drug’s availability after a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit curtailed access to the drug. It had ruled in August that the pill should remain legal in the country but with significant restrictions on patients’ access to it.

That ruling has been temporarily suspended from going into effect while the Supreme Court considers the case.

The battle over the medication could have wide-ranging consequences for access to the drug even in states where abortion is legal, as well as for the Food and Drug Administration’s regulatory authority over other drugs.

March 19

ny times logoNew York Times, Justices Seem Likely to Side With N.R.A. in First Amendment Dispute, Abbie VanSickle, March 18, 2024. The National Rifle Association argued that a New York official violated the First Amendment by encouraging entities to break ties with the group.

A majority of the Supreme Court appeared on Monday to embrace arguments by the National Rifle Association that a New York State official violated nra logo Customthe First Amendment by trying to dissuade companies from doing business with it after a deadly school shooting.

The dispute, which began after a gunman opened fire in 2018 at Marjory Stoneman Douglas High School in Parkland, Fla., was one of two cases on Monday that centered on when government advocacy crosses a line to violate the Constitution’s protection of free speech.

After the shooting, which killed 17 students and staff members, Maria Vullo, then a superintendent of the New York State Department of Financial Services, said banks and other insurance companies regulated by her agency should assess whether they wanted to continue providing services to the N.R.A.

The gun rights group sued, accusing Ms. Vullo of unlawfully leveraging her authority as a government official.

“It was a campaign by the state’s highest political officials to use their power to coerce a boycott of a political advocacy organization because they disagreed with its advocacy,” said David D. Cole, the national legal director for the American Civil Liberties Union, who argued on behalf of the N.R.A., adding that the officials’ actions had cost the group “millions of dollars.”

The lawyer for the New York officials, Neal K. Katyal, pushed back, arguing that state officials were performing their ordinary duties. “We think that it was an exercise of legitimate law enforcement,” he said.

ny times logoNew York Times, In an interview, Justice Stephen Breyer, now retired, sounded an alarm about the Supreme Court’s direction, Adam Liptak, March 19, 2024 (print ed.). Justice Stephen G. Breyer’s Supreme Court chambers are not quite as grand as those he occupied before he retired in 2022, but they are still pretty nice. As before, they include a working fireplace, which was crackling when I went to visit him on a temperate afternoon in late February to talk about his new book.

stephen breyer full portraitIn earlier interviews, Justice Breyer (shown in an official photo) could be rambling and opaque. This time he was direct. He said he meant to sound an alarm about the direction of the Supreme Court.

“Something important is going on,” he said. The court has taken a wrong turn, he said, and it is not too late to turn back.

The book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism, will be published on March 26, the day the Supreme Court hears its next major abortion case, on access to pills used to terminate pregnancies.

The book devotes considerable attention to Dobbs v. Jackson Women’s Health Organization, the 2022 decision that eliminated the constitutional right to abortion. Justice Breyer, who had dissented, wrote that the decision was stunningly naïve in saying it was returning the question of abortion to the political process.

“The Dobbs majority’s hope that legislatures and not courts will decide the abortion question will not be realized,” he wrote.

He was more forceful during the interview. “There are too many questions,” he said. “Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life? I mean, really, no one would do that. And they wouldn’t do that. And there’ll be dozens of questions like that.”

The book is a sustained critique of the current court’s approach to the law, one that he said fetishizes the texts of statutes and the Constitution, reading them woodenly, without a common-sense appreciation of their purpose and consequences.

Without naming names, he seemed to call on the three members of the court appointed by President Donald J. Trump — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — to reconsider how they approach the role.

“Recently,” he wrote, “major cases have come before the court while several new justices have spent only two or three years at the court. Major changes take time, and there are many years left for the newly appointed justices to decide whether they want to build the law using only textualism and originalism.”

He added that “they may well be concerned about the decline in trust in the court — as shown by public opinion polls.”

March 18

 

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

The official portrait of the U.S. Supreme Court

ny times logoNew York Times, Supreme Court Hears Arguments on White House Effort to Combat Misinformation, Adam Liptak, right, March 18, 2024. The justices are adam liptakconsidering what constitutes persuading websites to remove posts, which is permitted, and coercing them, which violates the First Amendment.

Supreme Court arguments are underway on Monday on whether the Biden administration violated the First Amendment in combating what it said was misinformation on social media platforms.

It is the latest in an extraordinary series of cases this term requiring the justices to assess the meaning of free speech in the internet era.

The case arose from a barrage of communications from administration officials urging platforms to take down posts on topics like the coronavirus vaccines and claims of election fraud. Last year, a federal appeals court severely limited such interactions.

Alex Abdo, a lawyer with the Knight First Amendment Institute at Columbia University, said the Supreme Court’s review of that decision must be sensitive to two competing values, both vital to democracy.

“This is an immensely important case that will determine the power of the government to pressure the social media platforms into suppressing speech,” he said. “Our hope is that the Supreme Court will clarify the constitutional line between coercion and persuasion. The government has no authority to threaten platforms into censoring protected speech, but it must have the ability to participate in public discourse so that it can effectively govern and inform the public of its views.”

The court this term has repeatedly grappled with fundamental questions about the scope of the government’s authority over major technology platforms. On Friday, the court set rules for when government officials can block users from their private social media accounts. Last month, the court considered the constitutionality of laws in Florida and Texas that limit large social media companies from making editorial judgments about which messages to allow.

Those four cases, along with the one on Monday, will collectively rebalance the power of the government and powerful technology platforms in the realm of free speech.

ny times logoNew York Times, Health misinformation is evolving. Experts offer tips for spotting it, Dani Blum, March 18, 2024. The Supreme Court heard arguments on Monday in a case that involves the Biden administration’s efforts to communicate with social media sites about posts officials believed made false or misleading claims about Covid-19 vaccines and the pandemic. While the case primarily focuses on a debate around free speech, it also spotlights the potential harms of medical misinformation — which experts say has become increasingly complex and difficult to identify.

“It’s all changing really fast, and it’s even harder for the average person to filter out,” said Dr. Anish Agarwal, an emergency physician in Philadelphia.

Health hacks not backed by science have spread widely on social media platforms. The same kinds of conspiracy theories that helped to fuel vaccine hesitancy during the Covid-19 pandemic are now undermining trust in vaccines against other diseases, including measles, as more people have lost confidence in public health experts and institutions. And rapid developments in artificial intelligence have made it even harder for people to tell what’s true and what’s false online.

“We’re understanding more that it’s not just a poisoned stream of information that people are getting, but a feedback loop where we have loss of trust, and we have misinformation, and the misinformation can lead to loss of trust,” said Tara Kirk Sell, a senior scholar at the Johns Hopkins Center for Health Security.

March 3

 

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

The official portrait of the U.S. Supreme Court

ny times logoNew York Times, Supreme Court Poised to Rule on Monday on Trump’s Eligibility to Hold Office, Adam Liptak, March 3, 2024. An unusual announcement from the court provided a strong hint that the justices will act the day before the primaries on Super Tuesday.

The Supreme Court announced on Sunday that it would issue at least one decision on Monday, a strong signal that it would rule then on former President Donald J. Trump’s eligibility for Colorado’s primary ballot.

The timing of the court’s actions may have been influenced by the electoral calendar. In urging the justices to intervene in the case, the Colorado Republican Party had asked them to act before the looming Super Tuesday primaries this week, which include Colorado.

The ruling is likely to resolve not only whether Mr. Trump may appear on the Colorado primary ballot but also whether he is eligible to run in the general election. Indeed, the decision will almost certainly apply to any other state where Mr. Trump’s eligibility to run has been challenged.

Not sincecolorado supreme court justices 2021, the 2000 decision that handed the presidency to George W. Bush, has the Supreme Court assumed such a direct role in a presidential contest.

The Colorado Supreme Court, shown at right, ruled in December that Mr. Trump is ineligible to seek or hold office under Section 3 of the 14th Amendment, which was adopted after the Civil War and prohibits people who swore to support the Constitution and then engaged in insurrection from holding office.

After Mr. Trump asked the U.S. Supreme Court on Jan. 3 to hear his appeal, the justices have moved with considerable speed to resolve the issue. They granted review just two days after the filing and scheduled arguments for about a month later.

Based on questioning at the oral argument, Mr. Trump is likely to prevail.

The court is also considering a second case concerning Mr. Trump, on whether he is immune from prosecution on charges that he plotted to overturn the results of the 2020 election. That has moved more slowly than the Colorado case.

The justices took 16 days after Mr. Trump’s emergency application regarding immunity to schedule arguments for seven weeks later, in the week of April 22. The court kept the trial, which had once been scheduled for March 4, on hold in the meantime.

If the court issues its decision in the Colorado case on Monday, it will have acted within a month of hearing arguments. If it follows that pace on the immunity case, a decision could land in late May. And if Mr. Trump loses, pretrial proceedings would resume and the trial itself might start, barring adam liptakother hurdles, in late September.

Adam Liptak, right, covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak

March 1

washington post logoWashington Post, Opinion: Supreme Court order gives Trump’s long-shot immunity claim a boost, Ruth Marcus, right, March 1, 2024 (print ed.). The Supreme ruth marcus twitter CustomCourt’s decision to hear Donald Trump’s audacious claim of presidential immunity from prosecution — with oral argument a leisurely seven weeks off — all but guarantees one of two terrible outcomes.

Either the former president’s trial on charges of attempting to subvert the 2020 election, a trial that was supposed to start next week, will now not take place until after the 2024 election, or it will be held in the final months before Election Day. The justices are not entirely responsible for this mess, but they have just made a bad situation far worse than it needed to be.

My beef isn’t with the court’s decision to hear the case — it’s with the outrageously lethargic timing. It would have been far better for the court to have taken up the issue back in December, when special counsel Jack Smith urged the justices to leapfrog the federal appeals court. Now, two and a half months have gone by. It took the justices two weeks after Trump sought their intervention to announce that they would hear the case. Worse, they set oral argument for the week of April 22, a delay that means a decision could easily take until May or even linger until the term finishes at the end of June.

Worst of all, especially given this timetable, the justices could have allowed trial preparations to go forward while the case was briefed, argued and decided. That would have prevented Trump from accomplishing what has been his aim all along: to use the immunity claim as a ploy to delay his trial until after the election.

washington post logoWashington Post, What happens next after Supreme Court agrees to hear Trump immunity case, Spencer S. Hsu, March 1, 2024 (print ed.). Answers to questions you have about the prosecution of the former president’s efforts to overturn the 2020 election.

washington post logoWashington Post, Opinion: What the Supreme Court told us, Jennifer Rubin, right, March 1, 2024 (print ed.). The Supreme Court on Wednesday granted certiorari to jennifer rubin new headshothear four-times-indicted former president Donald Trump’s claim that he has absolute immunity for official acts while he was in office. With oral argument set for April 22, the prospect for a trial on charges related to election interference and the Jan. 6, 2021, insurrection to be completed before the election wanes considerably.

One fascinating aspect is how the court defined the case.

The court determined that the only question to be addressed is whether a former president enjoys absolute “immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The language is telling in a number of respects.

Had the court entertained the possibility the answer would be yes (e.g., yes, he can order Seal Team Six to kill his enemies; yes, he can exile his opponent in his reelection bid), it would have had to address subsidiary questions such as “Was the president engaged in an official act?” or “What is the ambit of an official act?” Only if the answer is “no” — that is, affirming Judge Tanya S. Chutkan and the D.C. Circuit’s unanimous ruling — would there be no need for further inquiry. The presence of the single question tells us where the court is heading. 

Furthermore, if the court’s order is limited to considering official acts, then special counsel Jack Smith almost certainly could effectively argue that Trump’s attempt to overthrow an election for which he has no constitutional role must be deemed “unofficial” at the trial court level. That would allow Smith to proceed to trial. In other words, if the Supreme Court wanted to spare Trump, it simply would have asked, “Is a president immune from criminal prosecution?”

In addition, the court framed the question with regard to a “former president” only. Again, this sets up the case to disadvantage Trump. After all, saying a president cannot be prosecuted either during or after his presidency would make him a king. As lower courts have held, no court has remotely approached this conclusion. To hold that a president could never be held to account for his actions, no matter how egregious, no matter if he had left office, would create a single class of individuals — criminal ex-presidents — immune from the law. Though that might attract support from right-wing, authoritarian-friendly Justices Clarence Thomas and Samuel A. Alito Jr., it defies imagination that Trump could accumulate five votes for such an outrageous proposition.

Whether a trial could begin and finish before Election Day, we most certainly will have a decision addressing what is essentially his only defense: “I cannot be punished for official acts. Interfering with my own election was an official act. Therefore, I go free!” At the very least, if my analysis is correct, heading into an election, voters will know that this cannot possibly be the law. Voting for him would amount to allowing someone going to trial (or already on trial) for serious crimes to waltz into the White House.

Meanwhile, keep your eye out for a ruling on whether Trump is disqualified under Section 3 of the 14th Amendment. Though the letter of the Constitution suggests he should be, few think that is what the court will hold, especially after an oral argument in which no justice seemed inclined to knock him off the ballot. How the court rules, however, now takes on major significance. If, for example, the Supreme Court does not dispute that Jan. 6 was an insurrection, it would leave unchallenged the Colorado Supreme Court’s decision, the Maine secretary of state’s decision and the Jan. 6 House select committee’s conclusions that he did instigate an insurrection. Refusing to spare Trump from the conclusion of those bodies — and of the voters — would speak volumes about how the justices regard his conduct.

 

February

Feb. 29

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

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

washington post logoWashington Post, Justices set oral argument for week of April 20 on whether Donald Trump can be criminally prosecuted for acts he took while president, Ann E. Marimow, Feb. 29, 2024 (print ed.). The Supreme Court will review Donald Trump’s unprecedented claim that he is shielded from prosecution for actions taken while in office, further delaying the former president’s D.C. trial on charges of conspiring to overturn his 2020 election loss to remain in power.

The justices set argument for the week of April 22 to consider a unanimous ruling from a panel of the U.S. Court of Appeals for the D.C. Circuit that rejected Trump’s sweeping assertion of immunity from prosecution.

Trump’s pretrial proceedings in D.C. will remain on hold until a ruling is issued, putting the Supreme Court in the politically fraught position of influencing the timing of a federal election-obstruction trial for the leading Republican presidential candidate.

The brief unsigned order issued Wednesday said the justices were not “expressing a view on the merits” of the case and would consider only the question of whether and to what extent a former president has "immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

djt indicted proof

Trump faces four felony counts brought by Special Counsel Jack Smith in connection with what prosecutors allege was a plan to overturn Biden’s 2020 presidential victory: conspiring to defraud the United States, conspiring to obstruct the formal certification in Congress of President Biden’s victory, obstructing a congressional proceeding and conspiracy against rights — in this case, the right to vote.

He challenged the indictment, saying former presidents are immune from prosecution, at least for actions related to their official duties, unless first impeached and convicted by Congress. On Feb. 6, the D.C. Circuit delivered a forceful rebuke of that novel argument.

“We cannot accept former President Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results,” wrote the three judges, two nominated by Biden and the third by President George H.W. Bush.

Trump asked the Supreme Court to put the appeals court ruling on pause and give him time to seek rehearing by a full complement of D.C. Circuit judges. His lawyers argued that he should not be sidelined from the campaign trail by a months-long criminal trial, and said voters have the right to hear from Trump on the stump.

MSNBC, Andrew Weissmann: The Supreme Court has given Trump the win, Feb. 29, 2024. The Supreme Court on Wednesday laid out a hearing schedule on former President Donald Trump's claims of presidential immunity that raises significant doubts that the election interference case against him will go to trial before the 2024 election. Former Justice Department prosecutor Andrew Weissmann discusses.

 

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

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

Lawyers Defending American Democracy, Opinion: Yesterday’s Supreme Court decision to hear the appeal of the presidential immunity claim is the ultimate example of the adage: justice delayed is justice denied, Staff Report, Feb. 29, 2024. Faith in the Supreme Court’s impartiality can only continue to plummet after this inexplicable action.

In a decision which surprised legal experts, the Supreme Court has scheduled its oral argument for late April, giving the gift of time to a criminal defendant who is the master of manipulating time to his advantage. The presidential immunity claim was found to be meritless by the district and appellate courts in meticulously reasoned opinions. Yet after taking more than two weeks to issue a one-page ruling taking the case, the Supreme Court gave an additional gift of seven more weeks until oral argument.

As former Judge Michael Luttig stated, the Court’s decision will likely not issue before the end of their term, throwing the timing of an actual trial before November into doubt.

Faith in the courts has also been undermined by the Alabama Supreme Court, which recently decided to allow a wrongful death claim to proceed for the accidental destruction of IVF test tubes. This ruling has created chaos within the state, and is impacting reproductive health care across the country.

The concurring opinion by Chief Justice Parker offered a glimpse of a future in which our courts rule based upon their religious beliefs, rather than principles of Constitutional law. LDAD board member and former Massachusetts Appeals Court Justice James McHugh wrote elegantly about this concurrence for The Fulcrum: Alabama, Religious Freedom and Frozen Embryos.

We know that accountability is a fundamental underpinning to the rule of law. We are pleased to share with you an interview of three LDAD board members conducted by Renee Knake Jefferson, an author and Professor of Law at the University of Houston Law Center, in her Substack column entitled Legal Ethics Roundup.

Merrick Garland, Biden's choice as Attorney General (White House file photo from 2021).

Merrick Garland, Biden's choice as Attorney General (White House file photo from 2021).

OpEd News, Opinion: Merrick Garland Must Go, Arlen Grossman, Feb. 29, 2024. President Joe Biden made a consequential and significant mistake when he appointed Merrick Garland to be Attorney General of the United States. Garland has turned out to be weak, clueless, and ineffective, to the point that his actions are currently endangering our very democracy.

At first Biden's appointment of Garland seemed sensible. Most of us remember when Senate Leader Mitch McConnell blocked President Obama's plans to put the moderate jurist on the Supreme Court, the seat eventually going to right-wing religious fanatic Amy Comey Barrett.

When Biden took office in 2021, he likely figured Merrick Garland would be acceptable to both parties, and would be objective, serious about the law, and could be counted on to do the right thing.

Merrick Garland turned out to be a major disappointment in so many ways. President Biden, reportedly, and most Democrats now are not happy with the A.G.'s decisions, and most people deem it unlikely he will return to head the Justice Department if Biden wins a second term.

But so much damage by Garland's inept performance as Attorney General has already been done. The worst was his foot-dragging in holding Donald Trump accountable for his many crimes and abuses of power while president.

By the time Garland appointed special prosecutor Jack Smith in November of 2021 to look into Trump's transgressions, almost two years after the January 6 insurrection, too much time was wasted. And everyone knows Trump is a master at delaying justice and avoiding accountability.

Garland's selection of Robert Hur, a Republican-leaning, Trump-appointed federal prosecutor, to look into President Biden's mishandling of official documents was a major mistake. Hur glossed over the potential crime and zeroed in on Biden's mental state, which was beyond the scope of his duties, and changed the narrative of the election to whether Biden is capable of performing his presidential duties. That he has performed his job so far quite capably has taken a back seat to concerns about his age.

ny times logoNew York Times, Supreme Court Appears Split Over Bump Stock Ban, Abbie VanSickle, Feb. 29, 2024 (print ed.). The justices appeared divided largely along ideological lines over whether former President Trump’s administration overstepped its bounds by imposing the ban.

The Supreme Court wrestled on Wednesday over whether the Trump administration had acted lawfully in banning bump stocks, a firearm accessory used by the gunman during a mass shooting in Las Vegas in 2017, the deadliest in modern U.S. history.

The justices appeared divided largely along ideological lines over whether the administration overstepped its bounds by imposing a ban without action by Congress. Some raised concerns about the broader implications of reversing course for an attachment that enables a semiautomatic rifle to fire at speeds rivaling a machine gun.

ny times logoNew York Times, Supreme Court Appears Split Over Bump Stock Ban, Abbie VanSickle, Feb. 29, 2024 (print ed.). The justices appeared divided largely along ideological lines over whether former President Trump’s administration overstepped its bounds by imposing the ban.

The Supreme Court wrestled on Wednesday over whether the Trump administration had acted lawfully in banning bump stocks, a firearm accessory used by the gunman during a mass shooting in Las Vegas in 2017, the deadliest in modern U.S. history.

The justices appeared divided largely along ideological lines over whether the administration overstepped its bounds by imposing a ban without action by Congress. Some raised concerns about the broader implications of reversing course for an attachment that enables a semiautomatic rifle to fire at speeds rivaling a machine gun.

Feb. 28

ny times logoNew York Times, Trump Says He Might Have to Sell Properties to Pay $454 Million Penalty, Ben Protess and Kate Christobek, Feb. 28, 2024. Former President Trump, who is appealing the penalty in his civil fraud case, offered a bond of only $100 million to pause the judgment.

ICE logoDonald J. Trump offered a New York appeals court on Wednesday a bond of only $100 million to pause the more than $450 million judgment he faces in his civil fraud case, saying that he might need to sell some of his properties unless he gets relief.

It was a stunning acknowledgment that Mr. Trump, who is racing the clock to either secure a bond from a company or produce the full amount himself, lacks the resources to do so. Without a bond, the New York attorney general’s office, which brought the fraud case, could seek to collect from Mr. Trump at any moment.

djt maga hatIn a filing with the appeals court, Mr. Trump’s lawyers also asked to delay a wide range of other punishments that the trial judge in the fraud case, Arthur F. Engoron, levied in a decision this month. They include a prohibition on obtaining a loan from a New York bank for three years and a ban on running a company in the state during that same period.

One appellate court judge was hearing the request from Mr. Trump on Wednesday afternoon and was expected to issue a decision by the end of the day. If the judge were to grant the pause, it would be only temporary; Mr. Trump would still have to persuade a larger panel of appellate judges to keep the judgment on hold.

In seeking relief, Mr. Trump’s lawyers disclosed that he would be unable to secure a bond for the full $454 million, raising the prospect that he might soon default on the judgment if the appeals court denies his request.

Justice Engoron’s decision to bar Mr. Trump from obtaining new loans from New York banks further constrains his ability to either produce the money himself or have enough cash to pledge as collateral for a bond, they argued. Under New York law, a defendant also owes 9 percent interest to the plaintiff until the judgment is paid or the appeal resolved, meaning a full bond in this case might reach $500 million or more.

If the appeals court denies the request, Mr. Trump’s lawyers warned, he likely would have to sell some New York properties “under exigent circumstances,” in what would be a punishing blow to the former president.

“The exorbitant and punitive amount of the judgment coupled with an unlawful and unconstitutional blanket prohibition on lending transactions would make it impossible to secure and post a complete bond,” the lawyers wrote.

Mr. Trump might eventually be able to secure a bigger bond. His stake in Trump Media & Technology Group, his social media company, could be worth up to $4 billion after a long-delayed merger is final this year.

Posting a bond that the appeals court accepts would prevent the attorney general, Letitia James, from collecting the judgment until Mr. Trump’s appeal is resolved. Without a bond or pause from the court, Ms. James can seize Mr. Trump’s bank accounts and potentially take control of his New York properties. In its own filing, Ms. James’s office asked the appeals court to deny Mr. Trump’s request.

“There is no merit to defendants’ contention that a full bond or deposit is unnecessary because they are willing to post a partial undertaking of less than a quarter of the judgment amount,” the attorney general’s office wrote. “Defendants all but concede that Mr. Trump has insufficient liquid assets to satisfy the judgment.”

ny times logoNew York Times, Suspicious Powder Found at Courthouse Where Trump Judge Has Offices, Claire Fahy, Feb. 28, 2024. An envelope containing white powder was found Wednesday morning at the New York State Supreme Courthouse in Lower Manhattan, officials said. The court building, at 60 Centre Street, contains offices belonging to Justice Arthur F. Engoron, the judge who oversaw former President Donald J. Trump’s civil fraud trial.

Police officers responded to a 911 call at 9:29 a.m. regarding the suspicious powder. A court officer had opened an envelope, and white powder fell onto his pants, the police said.

No injuries were reported, and the building was not evacuated. The police said that the Fire Department had responded to the discovery of the powder and that the investigation continued.

The officer declined medical attention, according to the Fire Department, as did another court officer who was exposed to the powder.

Justice Engoron and the Supreme Court building have been targets in the past. Last month, the Nassau County Police Department responded to a hoax bomb threat at the judge’s home on Long Island.

In December, a man set a small fire on the fourth floor of the courthouse that he then quickly extinguished. The Fire Department responded, and three floors of the building were evacuated, but no serious injuries were reported. It was unclear whether the fire was related to Mr. Trump’s trial.

djt maga hatOver the course of the 11-week civil fraud trial, which ended this month, Mr. Trump repeatedly attacked Justice Engoron on Truth Social, Mr. Trump’s website, and in statements he made in court. In November, Mr. Trump’s Republican allies also went after Justice Engoron publicly, with Representative Elise Stefanik of New York filing an ethics complaint accusing him of “inappropriate bias and judicial intemperance,” and Laura Loomer, a far-right activist close to the former president, repeatedly attacking the judge and his family on social media.

Feb. 26

ny times logoNew York Times, The Supreme Court arguments could fundamentally change how social media sites are policed, David McCabe, Feb. 26, 2024 (print ed.). Here’s what to know: Both Florida and Texas passed laws regulating how social media companies moderate speech online. The laws, if upheld, could fundamentally alter how the platforms police their sites.

Social media companies are bracing for Supreme Court arguments on Monday that could fundamentally alter the way they police their sites.

After Facebook, Twitter and YouTube barred President Donald J. Trump in the wake of the Jan. 6, 2021, riots at the Capitol, Florida made it illegal for technology companies to ban from their sites a candidate for office in the state. Texas later passed its own law prohibiting platforms from taking down political content.

Two tech industry groups, NetChoice and the Computer & Communications Industry Association, sued to block the laws from taking effect. They argued that the companies have the right to make decisions about their own platforms under the First Amendment, much as a newspaper gets to decide what runs in its pages.
So what’s at stake?

The Supreme Court’s decision in those cases — Moody v. NetChoice and NetChoice v. Paxton — is a big test of the power of social media companies, potentially reshaping millions of social media feeds by giving the government influence over how and what stays online.

“What’s at stake is whether they can be forced to carry content they don’t want to,” said Daphne Keller, a lecturer at Stanford Law School who filed a brief with the Supreme Court supporting the tech groups’ challenge to the Texas and Florida laws. “And, maybe more to the point, whether the government can force them to carry content they don’t want to.”

If the Supreme Court says the Texas and Florida laws are constitutional and they take effect, some legal experts speculate that the companies could create versions of their feeds specifically for those states. Still, such a ruling could usher in similar laws in other states, and it is technically complicated to accurately restrict access to a website based on location.

Feb. 15

 

 Manhattan District Attorney Alvin Bragg speaks during a press conference to discuss his indictment of former President Donald Trump, outside the Manhattan Federal Court in New York on April 4, 2023 (Angela Weiss photo via AFP, Getty Imagesand TNS).

Manhattan District Attorney Alvin Bragg speaks during a press conference to discuss his indictment of former President Donald Trump, outside the Manhattan Federal Court in New York on April 4, 2023 (Angela Weiss photo via AFP, Getty Images and TNS).

ny times logoNew York Times, In Manhattan, a Possible Court Date in a Trump Criminal Trial, Jonah E. Bromwich, Ben Protess and Kate Christobek, Feb. 15, 2024. A date may be set for Donald Trump’s trial on charges that he disguised hush-money payments. It would be the first such trial of a former president.

A New York judge on Thursday is expected to rule on whether the Manhattan district attorney’s case against Donald J. Trump can go to trial as early as next month, in what would be the first criminal prosecution of a former American president.

juan merchan djtThe judge, Juan M. Merchan (shown above left), convened a hearing at 9:30 a.m. to address Mr. Trump’s long-shot request that he throw out the charges, which stem from a hush-money payment to a porn star. If Justice Merchan rejects Mr. Trump’s request — as is expected — then the judge will most likely set a firm date for the trial, which had been tentatively scheduled for March 25.

Mr. Trump, who is expected to attend the hearing on Thursday, faces 91 felony counts across four indictments from prosecutors in Washington, Florida and Georgia as well as Manhattan, all while he seeks to lock up the Republican presidential nomination.

The Manhattan district attorney, Alvin L. Bragg, was the first to obtain an indictment of Mr. Trump, accusing him last year of covering up a potential sex scandal involving the porn star during and after the 2016 election. Mr. Bragg, a Democrat, has cast his case not as a condemnation of sordid financial dealings, but as an example of Mr. Trump’s interfering in an election by concealing crucial information from voters.

Until recently, another criminal case involving accusations of election interference was poised to go to trial first. That case, filed in federal court in Washington by a special counsel, Jack Smith, centers on Mr. Trump’s effort to remain in power after his 2020 election defeat.

Mr. Bragg had indicated a willingness for the Washington case to jump ahead in line, underscoring its historical significance. But appeals from Mr. Trump postponed that trial, initially scheduled for March 4.

Here’s what else you need to know about Thursday’s hearing:

Porn star Stormy Daniels and former President Donald J. Trump, who allegedly hid hush payments to her via The National Enquirer newspaper during the 2016 presidential campaign to hide their affair.

Porn star Stormy Daniels and former President Donald J. Trump, who allegedly hid hush payments to her via The National Enquirer newspaper during the 2016 presidential campaign to hide their affair from election finance officials and the public.

Mr. Bragg’s case is best known for its salacious facts: During the 2016 campaign, the porn star, Stormy Daniels, threatened to go public with her story of a tryst with Mr. Trump, who then authorized a $130,000 payoff to keep her quiet. Paying hush money is not inherently illegal, but Mr. Trump is accused of falsifying records to hide a potential scandal from voters.

The case might come down to the word of Mr. Trump’s former fixer, Michael D. Cohen, who paid Ms. Daniels just days before voters went to the polls. Once Mr. Trump was elected, he reimbursed Mr. Cohen. This is the conduct at the heart of the case. Mr. Cohen, the prosecution’s star witness, is expected to testify that Mr. Trump authorized his family business to falsely record the payments to Mr. Cohen as legal expenses.

Mr. Trump’s lawyers have argued that Justice Merchan should throw out the case, deriding it as a “discombobulated package of politically motivated charges marred by legal defects.” They have also disputed whether the charges should be felonies. Mr. Trump has accused Mr. Bragg of carrying out a witch hunt against him.

This week is a perilous one for Mr. Trump. A day after Justice Merchan holds his hearing, another New York judge is expected to deliver a final ruling in Mr. Trump’s civil fraud case. The judge, Arthur F. Engoron, is weighing the New York attorney general’s request that he penalize Mr. Trump nearly $370 million and effectively oust him from the New York business world.

In addition to the Manhattan and Washington criminal cases, Mr. Trump faces federal charges in Florida, also brought by Mr. Smith, over his handling of classified documents after he left the White House. In the Georgia case, Mr. Trump is accused of seeking to subvert the 2020 election results in that state. On Thursday, at the same time that Mr. Trump is expected in Justice Merchan’s courtroom, there is a hearing in the Georgia case concerning a romantic relationship between the two prosecutors leading the case.

 

fulton county jail

Fulton County Prosecutors Fani Willis and Nathan Wade (Reuters file photo by Elijah Nouvelage).

ny times logoNew York Times, In Georgia, a Push to Disqualify the Main Prosecutors, Richard Fausset and Danny Hakim, Feb. 15, 2024. A judge in Atlanta will hear evidence about the defense’s claim of a disqualifying conflict of interest among the main prosecutors.

georgia mapThe three-year-long investigation of Donald J. Trump and his allies for election interference in Georgia faces a major hurdle on Thursday, when a judge begins to assess whether the lead prosecutor and her office should be disqualified from the case.

A hearing that began in the morning, delves into a romantic relationship between the two main prosecutors — Fani T. Willis, the Fulton County district attorney, and Nathan J. Wade (both shown above), whom she hired to run the case. The defense argues that their relationship has created an untenable conflict of interest.

Here are the details:

  • michael romanThe revelations about the relationship between Ms. Willis and Mr. Wade surfaced in a legal filing last month from Michael Roman, right, a former Trump campaign official who is one of the defendants in the Georgia election case. Ms. Willis and Mr. Wade acknowledged the relationship in a February court filing.
  • Lawyers for Mr. Roman and other defendants are seeking to disqualify the two prosecutors from the case. Their argument hinges on assertions of a financial conflict of interest: Mr. Wade has been paid more than $650,000 since he was hired in 2021, and during that time he has spent money on vacations with Ms. Willis. Defense lawyers argue that the money paid to Mr. Wade creates an incentive for Ms. Willis to prolong the case.
  • Ms. Willis, who acknowledged the romantic relationship in a filing last week, said it began only after Mr. Wade was hired, and was irrelevant to the case or her ability to lead it. She said that the costs of the couple’s personal travel had been “divided roughly evenly” between her and Mr. Wade, so it represented no financial conflict.
  • Fulton County Superior Court Judge Scott McAfee, right (Photo via Superior Court of Fulton County).Judge Scott McAfee of Fulton County Superior Court, right, the presiding judge in the Trump case, was persuaded that there was sufficient reason to hold an evidentiary hearing delving into the relationship. “It’s clear that disqualification can occur if evidence is produced demonstrating an actual conflict or the appearance of one,” the judge said at a hearing on Monday afternoon.
  • Ms. Willis, Mr. Wade and a number of others have been subpoenaed to testify at the hearing, including more than half a dozen prosecutors and others who work in the district attorney’s office, as well as Mr. Wade’s former divorce lawyer. Ms. Willis’s office has indicated that the prosecutors may call her father, who lives with her in Atlanta, as a witness. The evidentiary hearing is expected to last into Friday or longer.
  • Mr. Trump and 18 other defendants were charged last August with racketeering and a variety of other charges in connection with a plot to subvert the presidential election results in a number of swing states. Four of the defendants have already pleaded guilty.

Feb. 10

World Crisis Radio, Weekly Strategic Commentary: Corrupt Supremes on track to violate oaths of office by negating plain text of XIV Amendment’s webster tarpley 2007Insurrection clause to keep Trump on Colorado ballot, Webster G. Tarpley, right, Feb. 10, 2024. Thomas defies call from Chairman Durbin of Senate Judiciary Committee to recuse based on wife’s infamous complicity in rebellion;

Even three Democratic justices capitulate to MAGA program; Court is vitiated by ideological poison of Legal Positivism, now available as originalism (fake history or Geschichtskletscherei) or textualism (stupid nominalism in tradition of William of Ockham); Remedy is jurisprudence of Natural Law, meaning justice, morality, awareness of social consequences, and fulfilling tasks of government as expounded by Preamble to US Constitution;

Time to fire DoJ MAGA hack Robert Hur, the special counsel probing Biden for mishandling classified documents; Hur is the new Comey, having violated DoJ rules for special counsel by producing a 388 page screed defaming President and portraying him as senile; Hur’s obiter dicta could also open him to a lawsuit for defamation;

With AG Barr’s distortion of March 2019 Mueller Report, misleading intro hid Trump’s real Russiagate misdeeds; Now Hur’s lying introduction alleges crimes which are explicitly denied in main body of report;

Hur report is a blatant hatchet job to help Trump while bidding for post of Attorney General in a second Trump regime; Hur report was screened by AG Merrick Garland, who has failed to redact gratuitous and slanderous material that violates DoJ regulations mandating that prosecutors put up an indictment or shut up about derogatory material they have found; Garland is worst cabinet secretary, and must resign or be fired;

Garland failed for almost two years to name a special counsel, making Trump’s current delaying strategy possible; He has not moved against Congressional MAGAts implicated in January 6 coup, and has ignored rampant Supreme Court corruption;

Press riot at White House Thursday evening when Biden refutes Hur report as crazed journalistic hooligans scream their scurrilous objections on orders from their super-rich, Biden-hating owners; Failed White House Chief of Staff Jeff Zients permitted this disservice to the President and should go back to his true calling in private equity;

MAGA Quislings tank border security bill to enable Trump’s demagogy, but mainly to block funding for Ukraine defense as loyal toadies of Putin; MAGA Mike bungles impeachment of Mayorkas, highest ranking Hispanic in Biden administration;

Trump must present immunity appeal to rotten Suprem by Monday; Engoron moving toward imposing NY corporate death sentence after reports of Weisselberg perjury surface; Pro-Trump Mar a Lago judge stalls, wants to reveal witnesses to MAGA goons;

Behind the worldwide chaos: death agony of economic and globalization is marked by decline of all-powerful plutocratic finance oligarchs, who are now fighting for survival: Central engagement will be contest between arch-plutocrat Trump and Biden’s return to the FDR New Deal.

 

samuel alito horizontal headshotRepublican-nominated Supreme Court Associate Justice Samuel Alito

Raw Story, Analysis: Justice Alito's 'mob-like threat' during Trump hearing singled out by legal experts, Tom Boggioni, Feb. 10, 2024. Justice Alito's 'mob-like threat' during Trump hearing singled out by legal experts.

raw story logo squareAccording to Slate legal analysts Dahlia Lithwick and Mark Joseph Stern, one of the least commented-upon aspects of Thursday's Supreme Court hearing on Donald Trump's eligibility to stay on the ballot based upon the 14th Amendment was Justice Samuel Alito's veiled threat aimed at attorney Jason Murray representing the state of Colorado.

During their "Amicus" podcast, Lithwick admitted that some of Alito's comments about a ruling against Trump would lead to "frivolous " lawsuits struck her as "mob-like" as in, "nice democracy you got, it’d be a shame if something happened to it."

Commenting on his "menacing tone," she explained, "Alito was saying: 'Well, if you allow Colorado to knock Trump off the ballot, there’ll be more lawsuits by people who are willing to weaponize the legal system.' And I guess there’s only one answer to that, the answer that Jason Murray gave, which was that courts actually do know what to do with frivolous, threatening lawsuits that have no point. But another answer republican elephant logocould be: 'I’m sorry, Justice Alito, are you threatening me?'"

According to Stern, Alito's questioning also seemed menacing to him.

"It’s a threat that if a majority of the court allows Colorado to remove Trump from the ballot, justices like Alito are going to come out swinging for the frivolous, ridiculous cases that follow—which really should not be compared to this one, since it’s very much rooted in the Constitution," he explained. "It’s a threat that red states will try to retaliate, that Ron DeSantis will remove Joe Biden from the ballot because he’s a traitor or a Chinese spy or whatever other reason, just fill in the blank. And Sam Alito will be ready to let it happen."

Stern added that "fretting" questions from fellow conservative justices indicated they were less concerned with making the right constitutional ruling as much as they were worried about the repercussions for themselves in the future.

"Like Roberts and Alito, Justices Amy Coney Barrett and Brett Kavanaugh kept fretting that a ruling for Colorado could lead to such dangerous places. If we let Colorado remove a presidential candidate from the ballot, we’ll have to get involved in each and every other case out of red and blue states alike. So we have to look at the consequences of our decision," he elaborated before later adding, "And yet on Thursday, it was all consequence-based judging! From top to bottom! And I think that’s another example of the hypocrisy disparity between the different sides of the court."

Feb. 8

Salon, Opinion: Of course Trump's Supreme Court lawyer is the same guy behind Texas' sadistic abortion ban, Amanda Marcotte, Feb. 8, 2024.
salon LogoFor Jonathan Mitchell, gutting democracy is the means, but controlling women is the motive.

The big news that kicked off this week was that the Supreme Court set Thursday to hear oral arguments over whether or not texas mapDonald Trump should be kicked off the ballot per the 14th Amendment, which bars those who have "engaged in insurrection or rebellion" against the government from holding office.

What got a lot less attention was the announcement of which lawyer would argue on Trump's behalf: former Texas solicitor general Jonathan Mitchell. Reproductive rights activists sure sat up and took notice of the mention of Mitchell. He is one of the most odious men in the entire anti-abortion world, which is quite an achievement, considering the misogyny that fuels that movement.

djt maga hatMitchell earned this "worst of the worst" title by being the architect behind the Texas "bounty hunter" law, which adds a level of creative sadism to abortion bans that would make the villain in the "Saw" movies envious. There have been so many vicious abortion bans passed since the Supreme Court overturned Roe v. Wade in 2022 that readers could be forgiven for forgetting how ugly the Texas law is. To recap: Beyond just banning abortion, the Mitchell-penned law offers a $10,000 bounty to any person who sues someone who "aids and abets" an abortion. (Longer excerpt below in the #Me Too/Reproductive Rights section.)

It empowers every two-bit bully imaginable to stick their noses into other people's business. A nosy Karen who thinks her neighbor's daughter is a "slut?" She can sue that neighbor for taking her daughter to the abortion appointment. An angry incel can punish a more romantically successful classmate by suing him for paying for a girlfriend's abortion. Local church busybodies who find out a community member donated to an abortion fund can now sue for "aiding and abetting." And, as most feminists immediately predicted, abusive husbands and boyfriends can sue the friends of their victim, for helping with an abortion that helped a victim escape her destructive relationship.

One of Mitchell's first big cases under the law looks exactly like what feminists predicted. Marcus Silva did not want his ex-wife to leave him. Witnesses and text messages paint a vivid picture of the cruelty he repeatedly inflicted on her that made her flee, however. He reportedly got drunk at her work party and called her a "slut" and a "whore" in front of her colleagues. He allegedly monitored her phone against her will and would follow her around the house, screaming invective. He reportedly threatened to release sexually explicit photos of her if she didn't return to do his laundry. According to court documents, Silva told his ex-wife to have sex with him or "you’re just gonna have your f*cking life destroyed in every f*cking way that you can imagine to where you want to blow your f*cking brains out."

In order to escape, Silva's ex-wife aborted a pregnancy. According to her and two friends, Silva found out about the abortion beforehand but did not say anything to stop her. Instead, they allege, he waited until she had the abortion — and then to punish her for leaving him, sued her friends under the Mitchell-penned law. He then told his ex-wife, according to the countersuit, that he would stop legally harassing her friends if she returned to him.

Mitchell didn't just write the law that Silva is allegedly using to blackmail his ex-wife. He's also representing Silva in a lawsuit to bankrupt two women whose only sin was helping a friend leave a toxic marriage.

Terrorizing women who leave bad marriages may be Mitchell's passion, but far from his only far-right interest. As Lisa Needham at Balls and Strikes wrote in April, "Mitchell’s caseload reads like a list of grievances read aloud at CPAC." He has sued to destroy Obamacare and called on the Supreme Court to end "rights to homosexual behavior and same-sex marriage." He has lamented court decisions legalizing abortion and contraception on the grounds that they assumed "the right to freely engage to sexual intercourse." And no shock, Mitchell is big on book banning, representing Llano County, Texas, in a court battle over the public library removing books that feature LGBTQ characters.

Feb. 7

washington post logoWashington Post, Some want Justice Thomas to skip Trump’s ballot case. He doesn’t plan to, Tobi Raji, Feb. 7, 2024 (print ed.). A look at why the justices recuse themselves and the arguments for and against Thomas doing so.

Supreme Court Justice Clarence Thomas is facing calls from Democrats and court transparency advocates to recuse himself from a case examining whether former president Donald Trump can appear on 2024 primary election ballots nationwide.
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On Thursday the justices will hear oral arguments about a Colorado Supreme Court decision that found Trump engaged in insurrection before and during the Jan. 6, 2021, attack on the Capitol and is, as a result, disqualified from running under the 14th Amendment. The provision was initially adopted to keep Confederates from returning to power.

Democratic lawmakers have raised concerns about Thomas’s ability to remain impartial in this and several other Jan. 6-related cases given the involvement of his wife, Virginia “Ginni” Thomas, in the movement to overturn the 2020 election results. The ballot disqualification case, which is likely to be decided quickly, is a test of the court’s recently released code of conduct and recusal guidelines.

Here’s what you need to know: Why might a justice recuse from a case?

The Supreme Court’s newly adopted ethics code asks the justices to disqualify themselves if their “impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”

The code suggests recusal if a justice or their spouse has “an interest that could be substantially affected by the outcome of the proceeding” or is “likely to be a material witness in the proceeding.” Justice Ketanji Brown Jackson, who previously served on Harvard University’s Board of Overseers, notably recused herself from one of two cases examining the constitutionality of race-conscious admissions practices in 2022 because Harvard was the defendant.

However, the decision to recuse is up to the individual justice — a point of contention among critics including Sen. Sheldon Whitehouse (D-R.I.), who is sponsoring legislation to impose an enforceable ethics code on the justices.

When they do sit out a case, justices do not have to say why; Justice Neil M. Gorsuch gave no reason when he recused himself this year from an Oklahoma death penalty case, although it was probably related to his time as a judge on an appeals court that covers Oklahoma.

Recusals are rare at the high court, in part because unlike in lower courts, no other judge can fill in for an absent justice. When the Supreme Court is shorthanded, it can result in a 4-4 tie. Justices recused themselves in about 3 percent of appeals between 2018 and 2022, with Justices Samuel A. Alito and Elena Kagan doing so most often, according to a 2023 Bloomberg Law analysis.

Feb. 6

 

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

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

ny times logoNew York Times, Guest Essay: There’s a Border War Inside the Supreme Court, Too, Linda Greenhouse, Feb. 6, 2024 (print ed.). Ms. Greenhouse, the linda greenhouse cover just a journalistrecipient of a 1998 Pulitzer Prize and shown at right on the cover of her memoir, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.

Most people know by now about the border war between Texas and the United States playing out along the banks of the Rio Grande. Less obvious, but no less consequential, is an emerging border war inside the Supreme Court.

At the physical border are 29 miles of coiled razor wire on the United States side of the river, put in place by the Texas National Guard on orders from Gov. Greg Abbott. Its ostensible purpose is to stop what Governor Abbott, a Republican, calls an unchecked “invasion” of undocumented migrants.

It has had the added and hardly unpredictable effect of barring access to the border by the federal Border Patrol agents. The agents responded by cutting some of the wire. Texas in turn sued the federal government for, of all things, trespass.

The state lost in Federal District Court on the grounds that the United States is immune from suits of this type. But the United States Court of Appeals for the Fifth Circuit gave Texas what it wanted: an injunction to bar border patrol agents from tampering with the wires, except for rescue operations, to last until the appeals court decides the legal merits of the state’s case. The court is scheduled to hear arguments on the case on Wednesday.

In contrast to the actual border, the line inside the Supreme Court that I call the notional border divides the two groups of justices who responded in opposite ways to the federal government’s urgent request to vacate the Fifth Circuit’s injunction. A bare majority of five justices granted the government’s application last week. The other four — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — would have left it in place.

Obviously, Supreme Court justices take opposite sides on all kinds of cases, and we don’t ascribe their differences to an internal border war. But the metaphor is apt in the context of a case that raises such a profound issue of governing authority, one that has largely lain dormant since the days when Southern governors stood in schoolhouse doors in defiance of desegregation orders.

When, if ever, can a state defy the federal government? Does the long-established supremacy of federal law simply evaporate at the hand of state-sympathizing judges? It’s hard to think of questions more central to how we govern ourselves, or more resonant with past crises caused by the demagogic flouting of established norms of federal-state behavior.

As is common when the Supreme Court rules on emergency matters on what has come to be known as its “shadow docket,” neither group of justices wrote anything to explain themselves. That leaves the rest of us to draw our own conclusions, and I have drawn mine. For four justices to have voted to allow Texas to keep the upper hand in this dispute was shocking.

 

 

djt handwave file

ap logoAssociated Press, Trump is not immune from prosecution in his 2020 election interference case, US appeals court says, Eric Tucker and Alanna Durkin Richer, Feb. 6, 2024. It’s the second time in as many months that judges have spurned Trump’s immunity arguments and said he can be prosecuted for actions undertaken while in the White House and in the run-up to the Jan. 6 riot.

A federal appeals panel ruled Tuesday that Donald Trump can face trial on charges that he plotted to overturn the results of the 2020 election, rejecting the former president’s claims that he is immune from prosecution.

The decision marks the second time in as many months that judges have spurned Trump’s immunity arguments and held that he can be prosecuted for actions undertaken while in the White House and in the run-up to Jan. 6, 2021, when a mob of his supporters stormed the U.S. Capitol. But it also sets the stage for additional appeals from the Republican ex-president that could reach the U.S. Supreme Court. The trial was originally set for March, but it was postponed last week and the judge didn’t immediately set a new date.

“We conclude that the interest in criminal accountability, held by both the public and the Executive Branch, outweighs the potential risks of chilling Presidential action and permitting vexatious litigation,” the judges wrote.

The trial date carries enormous political ramifications, with the Republican primary front-runner hoping to delay it until after the November election. If Trump defeats President Joe Biden, he could presumably try to use his position as head of the executive branch to order a new attorney general to dismiss the federal cases or he potentially could seek a pardon for himself.

The appeals court took center stage in the immunity dispute after the Supreme Court last month said it was at least temporarily staying out of it, rejecting a request from special counsel Jack Smith to take up the matter quickly and issue a speedy ruling.

The legally untested question before the court was whether former presidents can be prosecuted after they leave office for actions taken in the White House related to their official duties.

The Supreme Court has held that presidents are immune from civil liability for official acts, and Trump’s lawyers have for months argued that that protection should be extended to criminal prosecution as well.

washington post logoWashington Post, Election 2024: Republicans fear they will be targets in Trump’s ‘retribution’ campaign, Josh Dawsey and Michael Scherer, Feb. 6, 2024. The former president is already attacking those who have endorsed his GOP opponents or have crossed him in other ways.

trump 2024Donald Trump has promised a presidency of “retribution” if he wins another term in office. Many Republicans fear they might face the brunt of it.

djt maga hatThe former president has threatened to have donors to his Republican opponent Nikki Haley “permanently barred” from his orbit. A top adviser has vowed to destroy the career of Rep. Bob Good (R-Va.), House Freedom Caucus chairman, after he endorsed another Trump challenger, Florida Gov. Ron DeSantis. The Trump campaign has also attempted to condemn former aides who worked for his rivals during the GOP nomination fight and have twisted arms demanding endorsements, telling lawmakers that Trump will remember exactly when they backed him.

“MAGA disowns her and anyone else that associates/works with her,” read a recent Trump campaign social media message targeting the Trump campaign’s 2020 communications director for working last year to elect DeSantis. “TRAITOR!”

Even new House Speaker Mike Johnson (R-La.) has been dragged into the crossfire. One of his top political consultants, Jason Hebert, works for Axiom Strategies, a consulting company that advised the DeSantis presidential effort. A Trump adviser called Johnson after he won the speakership to warn him not to work with Axiom, according to multiple people familiar with the call, who like others spoke on the condition of anonymity to disclose internal details. Hebert, a college friend of Johnson’s, is expected to start billing his work for Johnson through a company not tied to Axiom, one of the people said.

The high-dollar donor community, which has been told in various ways to rally quickly behind Trump, has taken notice.

“People took that as, ‘I am going to be president and I am going to investigate you,’” said Katon Dawson, a former South Carolina GOP chairman and Haley backer, when Trump threatened to punish her donors. “There is always a threat. If you are not for him he’s against you.”

  • What the 14th Amendment says about whether Trump can be on the ballot
  • What we’re watching: How Haley frames her expected victory

Feb. 3

World Crisis Radio, Weekly Strategic Overview: Will the Supreme Court uphold the plain text of the Constitution, or will threats and bribes induce them into an Orwellian denial of the Fourteenth Amendment’s exclusion of insurrectionist Trump from the ballot? webster tarpley 2007 Webster G. Tarpley, right, historian and commentatory, Feb. 3, 2024 (156:05 mins.).

If Democrats want to defend the Constitution from Trump, here is where they must start; Trump got all the due process he was entitled to when XIV Amendment was ratified in 1868; Beware the perils of hyper-democracy, a key factor in the 1933 destruction of Germany’s Weimar Republic constitution;

ICE logoFriends of the court brief from 25 historians makes plain that Insurrection Clause was intended to apply to presidents, and therefore to Trump, as officers of US federal government; Ban on insurrectionists in public office was intended to be permanent, with an emphatic view to excluding future offenders; this provision is self-executing and does not require further legislation by Congress or court convictions; the key roles of Reps. Thaddeus Stevens (right, a Republican thaddeus stevens brady handycongressman from Pennsylvania shown in a photo by Brady Handy), Jonathan Bingham, and Benjamin Butler;

Confederate ex-President and arch-traitor Jefferson Davis (shown below at left in a photo by Matthew Brady in approximately 1859 when Davis was a U.S. senator). might have sought White House in 1870s, but XIV Amendment barred him and he acknowledged it; Originalists and jefferson davis 1859 matthew bradytextualists cannot today deny the force of this clause;

Judge Luttig’s brief represents that rarity, the views of an actual conservative concerned with tradition, precedent, custom, norms, protocols, conventions, and stare decisis — in contrast to MAGA demagogues who proclaim they want to tear up the Constitution;

Reports of long-overdue indictments for Congressmen and Senators implicated in January 6 putsch attempt; these are also the main saboteurs of foreign military aid; Trump hypes US-Mexico border situation as apocalyptic emergency for demagogic purposes, but then demands solutions wait at least a year for his supposed regime;

Biden should ready emergency powers to make sure military aid to Ukraine arrives in time to defeat Russian aggressors; European Union rebuffs sinister bid by Russian satellite Orban of Hungary to deliver Kiev into hands of Kremlin; 50 billion euros now headed for Ukraine;

Realism at last: Biden leads Trump 50-44 overall in latest Quinnipiac poll, with epic 58-36 Dem lead among women voters; Bidenomics created a stunning 353,000 jobs in January; Trump faces cash crunch after spending $55 million on lawyers in 2023; RNC hack Ronna McDaniel’s tenure under heavy attack; GOP state organizations impoverished and/or bitterly factionalized in Michigan, Arizona, Nevada, Colorado, Pennsylvania, and Minnesota; MAGA personalities are not selling well, so they try to use Taylor Swift as a wedge issue;

Biden State Department joins with British Foreign Office to study diplomatic recognition of Palestinian Authority as sovereign state without reference to Israel; Biden has thus revived two-state solution after decades of frustration; US readies sanctions against leaders of armed fascist settlers in West Bank, perhaps including Smotrich and Ben Gvir of Netanyahu cabinet; Why Dearborn attacks on Biden are tragically misguided; Remembering Bourguiba’s 1965 realistic advice to Nasser that could have prevented 6-day war;

Breaking: Biden orders air strikes on 85 pro-Iranian militia targets in Syria and Iraq to deter repeats of last week’s rocket hit that killed 3 US soldiers at Tower 22 in Jordan.

 

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

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

Politico, Special counsel mounts forceful — and unusual — defense of Trump classified documents case, Josh Gerstein and Kyle Cheney, Feb. 3, 2024. The routine filing features a public rebuttal of “misimpressions” allegedly fueled by the former president.

politico CustomSpecial counsel Jack Smith used a routine legal filing Friday to offer a forceful public rebuttal against Donald Trump’s claims that his criminal prosecution for allegedly hoarding classified documents has been infected by politics and legal impropriety.

The 68-page document began with what Smith’s team described as an effort to correct false assertions the former president had made about the nature of the case against him.

“It is necessary to set the record straight on the underlying facts that led to this prosecution,” the prosecutors argued. “The government will clear the air on those issues … because the defendants’ misstatements, if unanswered, leave a highly misleading impression.”

What followed was a lengthy recitation of the events that led prosecutors to suspect Trump had been squirreling reams of classified records at his Mar-a-Lago estate. Rather than the bloodthirsty partisan endeavor Trump describes, prosecutors say federal officials from the National Archives, intelligence community and White House counsel’s office took “measures” and “incremental” steps to retrieve the documents — often in coordination with some of Trump’s own designated advisers — before escalating the matter as the former president continued to resist.

The approach taken in the legal brief is somewhat unusual for the Justice Department. Though the filing was submitted to U.S. District Judge Aileen Cannon, at times it sounded like an opening argument to a jury Trump could face in the future or the first chapter of a report meant to detail investigative findings to the public.

It’s unclear whether the “misimpressions” prosecutors say they’re trying to correct are ones they fear Cannon could fall prey to, whether the target audience for the brief is a larger one, and how the Fort Pierce, Fla.-based Trump appointee will respond to the tactic.

The substance of the prosecution brief is aimed at countering the demands by Trump and his two co-defendants — Walt Nauta and Carlos DeOliveira — for access to a broad range of documents from across the government that the defense attorneys contend could be useful in defending their clients. They’ve asked Cannon to consider massive executive branch agencies and the White House as appendages of Smith’s prosecution team — a decision that could open their files to defendants beyond the typical evidence-sharing that occurs for witnesses in criminal proceedings.

The filing included some new details about the origins of the probe, particularly as Trump’s liaisons to the National Archives began a dialogue with key White House officials about how to facilitate the return of missing documents. Though Trump has long portrayed the Biden White House’s involvement in the process as a sign of sinister politics, Smith’s team described it as limited, necessary and well-known to Trump’s aides, who did not protest.

That was a running theme throughout the prosecutors’ filing: Where Trump spoke in ominous terms about a monolithic “Biden administration” acting against him, the reality was that career officials from multiple agencies, acting on their discrete responsibilities, took standard and even “innocuous” actions to fulfill their duties, according to the brief.

The brief is also peppered with factual claims that make Trump’s behavior sound more serious and egregious. When discussing the defense’s request for more information from the Secret Service, prosecutors assert that their interaction with the federal agency that guards the president and his family underscored Trump’s recklessness in keeping a large volume of classified information at his Florida home, which also serves as a social club and a site for political and social events with lengthy guest lists.

The Secret Service reported that “of the approximately 48,000 guests who visited Mar-a-Lago between January 2021 and May 2022, while classified documents were at the property, only 2,200 had their names checked and only 2,900 passed through magnetometers,” the prosecution filing says

Feb. 2

 

 

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

The official portrait of the U.S. Supreme Court

 ny times logoNew York Times, The Supreme Court will hear arguments next week over whether Donald Trump should be removed from the ballot, Alan Feuer and Maggie Haberman, Feb. 2, 2024 (print ed.). The Supreme Court is poised to jump head first into a place it never really wanted to be: the middle of the 2024 presidential race.

Next week, the justices are scheduled to hear arguments about whether Donald Trump should be removed from the ballot for engaging in an insurrection on Jan. 6, 2021.

The issues the Supreme Court will consider at the hearing on Thursday will turn on a novel question of the law: whether Trump can be barred from running for president under a provision of the 14th Amendment that forbids officials from holding office if they took part in an insurrection against the United States.

Expect debate on several important factual and legal matters, including whether Trump’s role in the attack on the Capitol counts as an act of insurrection and whether the amendment covers presidents or only applies to lesser federal offices.

The hearing marks the first — but perhaps not the last — time the court will mull a question that will have an enormous impact on Trump’s legal and political future. And it also reflects just how deeply his campaign has become enmeshed with the legal system. In an example of that, the proceeding will take place on the same day as the Nevada caucuses, which Trump is expected to win, further solidifying his grip on the Republican nomination.

While the court’s decision will technically be limited to the question of whether Trump’s name can appear on the primary ballot in the state of Colorado, it will almost certainly have a much broader impact. Plaintiffs in several other states have also sought to bar him from running in November and are waiting for the justices to give them guidance on how to proceed.

The ballot case is separate from the four criminal cases Trump is facing in New York, Florida, Washington and Georgia, and from several of his civil proceedings. The hearing comes two weeks after Trump was ordered to pay $83 million in damages for defaming the writer E. Jean Carroll, who accused him of raping her decades ago. (A jury found him liable for sexual abuse.) And it could take place around the same time that a Manhattan judge enters a final ruling in a civil fraud case in which he has been accused of inflating the value of his real estate portfolio.Tower, which is 10,996 square feet, but had been listed for years on his annual financial statements as measuring 30,000 square feet.

ny times logoNew York Times, Opinion: What’s Really Happening in Biden vs. Abbott vs. the Supreme Court, Stephen I. Vladeck, right, Feb. 2, 2024 (print ed.). stephen vladeck resizedMr. Vladeck is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”

The confrontation between state and federal officials in the border town of Eagle Pass, Texas, has created some wild hyperbole: From various commentators, it is the Fort Sumter for America’s second civil war; or the triumphant vindication of states’ rights at the expense of a weak president; or some twisted combination of both.

After the Supreme Court tentatively stepped in last week to rule that federal officials can remove razor wire that Texas installed along the Mexican border, many Democrats accused Gov. Greg Abbott of “defying” the Supreme Court, while many Republicans argued that Mr. Abbott should defy the court.

But what’s really happening in Texas isn’t a constitutional crisis. It’s a stress test for a potential constitutional crisis — and we’re all failing miserably.

The most recent escalation in the simmering feud between federal officials and Mr. Abbott over the state’s border measures came into greater public view after three migrants drowned in the Rio Grande by Eagle Pass. In its slow-burning effort to see how far a single state can push the existing envelope before the courts push back, Texas has ramped up its own efforts to deter unlawful immigration.

At first, those efforts mostly involved expanding the presence of National Guard and state law enforcement officers along the border. But since the middle of 2023, they have expanded both physically and in legal significance — including the placement of obstacles in the middle of the Rio Grande, the razor wire along a roughly 30-mile stretch of the border near Eagle Pass and, most recently, the passage of state legislation, set to go into effect in March, that effectively creates a state-level deportation system.

But the underlying dispute is over what U.S. immigration policy should look like. A real solution depends on striking a national balance between trying to disincentivize and deter unauthorized entry into the country and treating those who nevertheless attempt such entry as fellow humans, at least some of whom have rights under federal laws to make the case for why they should be allowed to stay.

Congress has been unable to pass meaningful immigration reforms for decades — leaving the balance striking to the discretion of successive presidents.

Legally, the constitutional law is quite clear: The federal government gets to set nationwide immigration policies and choose how to enforce them. And although states are free to assist in federal enforcement (or to decline to assist, in the case of so-called sanctuary cities), there is no serious argument that states have the authority to impede or supplant federal enforcement efforts. Federal supremacy is hard-wired into the Constitution, regardless of how vigorously we might oppose the policy choices that particular federal officials — or even the sitting president — make. Although the antebellum era witnessed an array of arguments from states for why they could resist federal statutes to which they objected, none of those arguments survived the Civil War.

That hasn’t stopped Mr. Abbott. In a remarkable statement issued last week, he invoked Article 1, Section 10, Clause 3 of the U.S. Constitution for the proposition not only that states have a federal constitutional right to defend themselves against “invasion,” but also that such authority “supersedes any federal statutes to the contrary.” In other words, so long as Texas is defending itself against what it believes is an invasion, conflicts between its actions and those of federal immigration officials should be resolved in Texas’ favor.

Given that the statement came just two days after he had been handed a temporary setback by the Supreme Court in one of the three pending border-related lawsuits between Texas and the federal government, it was viewed by many on the left (and in the media) as outright defiance of the justices’ ruling, if not a flashpoint for a burgeoning constitutional crisis. Meanwhile, right-wing media — and an alarming number of Republican elected officials — egged Mr. Abbott on, encouraging him to do exactly what his critics claimed he was already doing, that is, to ignore the Supreme Court in the name of defending Texas’ sovereignty.

The reaction from the left was wrong. All that the Supreme Court did last week was to wipe away, with no explanation, a lower-court injunction that was effectively barring federal officials from removing the razor wire that Texas had placed along the border. Nothing in the ruling stopped Texas from doing anything, so there was no way in which Mr. Abbott could “defy” the court, even if he wanted to. His public and in-court arguments may be — and are — incorrect, but it’s not a constitutional crisis just because he’s making them. And although some prominent Democrats have urged President Biden to federalize the Texas National Guard in response, such a move would be legally dubious on its own and would serve only to escalate the political conflict.

The reaction from the right was far worse. From members of Congress to right-wing commentators, the idea that Mr. Abbott should simply ignore the Supreme Court quickly drew enormous traction. For everyone urging Mr. Abbott on, this made painfully clear that the constitutional principles just don’t matter; all that matters is winning. If an issue is popular — or divisive — enough, then using it to score political points takes precedence over all other considerations, including an actual policy fix on Capitol Hill, respect for the other branches of government, or fidelity to the basic structure of our constitutional system, to say nothing of the dangerous legal and political precedents it would set to upend all of those things.

And then there’s the court itself — which, with full knowledge of what’s happening on the ground, didn’t exactly help matters by issuing an unexplained ruling that divided the justices 5 to 4. Rather than providing guidance that might have helped to defuse some of the legal disputes and political tension, or at least speaking with one voice, the justices introduced further confusion.

All of this augurs poorly for a real constitutional crisis, in which, armed with public support, some person or institution in our system openly defies the constitutional checks and balances imposed by another. The pushback, in such a case, is going to require nuance and statesmanship: nuance to make clear to the public exactly what the crisis is (and isn’t) and how it was provoked, statesmanship to provide at least some response from those of the same political ilk for why the long-term costs of such subversion of the Constitution outweigh the short-term benefits. If and when disputes arising from that crisis reach the Supreme Court, the justices need to do more than bury their heads in the sand — by both explaining exactly what the Constitution does and doesn’t require and acting in ways that don’t simply reaffirm the public’s lack of faith in the institution.

With that in mind, President Biden would be well advised to give a public address identifying facts and fiction about the administration’s immigration policies, especially as they compare with those of his predecessors. The goal is not a publicity stunt but rather an honest effort to identify what the current challenges are, how they align with (and differ from) the challenges of the past and what he’d like to do to meet them. Much of this information can already be found in the legal briefs the federal government has filed in these lawsuits and in other official government reports, but one can measure the rhetorical gap between what’s being argued in court and what’s being said on social media in light-years.

 

January 2024

Jan. 18

washington post logoWashington Post, Maine court puts hold on one of Trump’s primary ballot cases, Patrick Marley, Jan. 18, 2024 (print ed.). A judge delayed the decision Wednesday, saying the Supreme Court must rule on a similar Colorado case first. Maine’s secretary of state had ruled last month that Donald Trump was an insurrectionist who is not eligible to hold office again.

A Maine judge on Wednesday put off deciding whether Donald Trump’s name can appear on that state’s primary ballot, saying the Supreme Court needs to rule on the issue first in a similar case out of Colorado.

The ruling sent the case back to Maine’s secretary of state and put the case on hold. It came amid a nationwide push from Trump’s critics to prevent the former president from running for office again.

Section 3 of the 14th Amendment of the Constitution bars from office those who engaged in insurrection after swearing an oath to uphold the Constitution. The amendment was ratified in 1868, and the clause was used initially to keep former Confederates from returning to power after the Civil War.

Trump’s critics have cited the measure in lawsuits arguing Trump is banned from office because of his behavior before and during the attack on the U.S. Capitol on Jan. 6, 2021. Colorado’s top court last month ruled Trump should be taken off the primary ballot there, and a week later Maine Secretary of State Shenna Bellows (D) reached the same conclusion.

The U.S. Supreme Court agreed to hear the Colorado case and will hear arguments in it on Feb. 8. Its ruling on the issue is likely to apply to all states.

Jan. 16

 

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

The official portrait of the U.S. Supreme Court

ny times logoNew York Times, A Potentially Huge Supreme Court Case Has a Hidden Conservative Backer, Hiroko Tabuchi, Jan. 16, 2024. The case, to be argued by lawyers linked to the petrochemicals billionaire Charles Koch, could sharply curtail the government’s regulatory authority.

The Supreme Court is set to hear arguments on Wednesday that, on paper, are about a group of commercial fishermen who oppose a government fee that they consider unreasonable. But the lawyers who have helped to propel their case to the nation’s highest court have a far more powerful backer: the petrochemicals billionaire Charles Koch.

The case is one of the most consequential to come before the justices in years. A victory for the fishermen would do far more than push aside the monitoring fee, part of a system meant to prevent overfishing, that they objected to. It would very likely sharply limit the power of many federal agencies to regulate not only fisheries and the environment, but also health care, finance, telecommunications and other activities, legal experts say.

“It might all sound very innocuous,” said Jody Freeman, founder and director of the Harvard Law School Environmental and Energy Law Program and a former Obama White House official. “But it’s connected to a much larger agenda, which is essentially to disable and dismantle federal regulation.”

The lawyers who represent the New Jersey-based fishermen, are working pro bono and belong to a public-interest law firm, Cause of Action, that discloses no donors and reports having no employees. However, court records show that the lawyers work for Americans for Prosperity, a group funded by Mr. Koch, the chairman of Koch Industries and a champion of anti-regulatory causes.

The law firm’s board of directors includes a top lawyer at the firm that has represented Koch Industries in a range of cases, like the company’s past defense against lawsuits linked to its handling of petroleum coke, a byproduct of oil refining, and in its opposition to stronger regulations on the substance.

The lawyer also represents Koch Industries in an ongoing lawsuit filed by the Minnesota attorney general that accuses the company of deceptive practices related to climate change.

Other members of the board include executives at groups predominantly funded by Mr. Koch or by Koch Industries, America’s second-largest privately held company, after Cargill.

ny times logoNew York Times, A Fight Over a Fishing Regulation Could Help Tear Down the Administrative State, Adam Liptak, Jan. 15, 2024. The Supreme Court will hear arguments this week over whether to overturn a key precedent on the power of executive agencies.

A herring fisherman named Bill Bright talked about the case, which will be argued on Wednesday and could both lift what he said was an onerous fishing regulation and wipe out the most important precedent on the power of executive agencies, a long-sought goal of the conservative legal movement.

As workers cleaned squid and the salt air whipped over the docks, Mr. Bright, who has been fishing for 40 years and whose family-owned company is one of the plaintiffs, said he recognized the impact the case could have.

“I can see why this case is such a political thing,” he said. “But to me, it’s not political. This is my livelihood.”

Mr. Bright is backed by a conservative group with ambitions that extend far beyond fishing regulations. Its aim is to do away with a seminal 1984 decision, Chevron v. Natural Resources Defense Council, one of the most cited cases in American law.

The conservative legal movement and business groups have long objected to the ruling, partly based on a general hostility to government regulation and partly based on the belief, grounded in the separation of powers, that agencies should have only the power that Congress has explicitly given to them.

Overturning the decision could threaten regulations on the environment, health care, consumer safety, nuclear energy, government benefit programs and guns. It would also shift power from agencies to judges.

Mr. Bright laid out the basic question in his case.

A 1976 federal law requires herring boats to carry federal observers to collect data needed to prevent overfishing. That was fine with him.

“There’s nothing wrong with the monitors,” he said. “They’re actually gathering information that is valuable to us.”

But a 2020 regulation interpreting the law that required his company to pay for the oversight, at a rate of some $700 a day, was another matter. “I don’t think it’s fair,” he said, adding that Congress had not authorized the agency to impose the fee.

Jan. 7

 

 

 Supreme Court Justice Clarence Thomas with his wife, Virginia

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

Meidas Touch Network, Commentary: Dems Makes URGENT DEMAND to Clarence Thomas in Trump Case, Michael Popok, right, Jan. 7, 2024. michael popokJustice MTN Media Touch NetworkClarence Thomas will obtain more money if Trump is re-elected from his wife’s right wing MAGA consulting and lobbying firms, and that combined with his wife’s key role in organizing the Jan6 insurrection disqualifies Thomas from presiding over Trump-related cases.

Michael Popok of Legal AF reports on a new demand by House Democrats that Thomas recuse himself from all things Trump and the ballot banning cases, or else.

Jan. 6

 

Then-President Donald Trump, left and future President Joe Biden and shown during a 2020 debate in Associated Press photos by Patrick Semansky on Sept. 29,  2020.

Then-President Donald Trump, left and future President Joe Biden and shown during a 2020 debate in Associated Press photos by Patrick Semansky on Sept. 29, 2020.

ny times logoNew York Times, Clashing Over Jan. 6, Trump and Biden Show Reality Is at Stake in 2024, Michael C. Bender, Lisa Lerer and Michael Gold, Jan. 6, 2024. Former President Trump and President Biden are framing the election as a battle for democracy — with Mr. Trump brazenly casting Mr. Biden as the true menace.

Rarely in American politics has a leading presidential candidate made such grave accusations about a rival: warning that he is willing to violate the Constitution. Claiming that he is eager to persecute political rivals. Calling him a dire threat to democracy.

Those arguments have come from President Biden’s speeches, including his forceful address on Friday, as he hammers away at his predecessor. But they are also now being brazenly wielded by Donald J. Trump, the only president to try to overthrow an American election.

Three years after the former president’s supporters stormed the Capitol, Mr. Trump and his campaign are engaged in an audacious attempt to paint Mr. Biden as the true menace to the nation’s foundational underpinnings. Mr. Trump’s strategy aims to upend a world in which he has publicly called for suspending the Constitution, vowed to turn political opponents into legal targets and suggested that the nation’s top military general should be executed.

The result has been a salvo of recriminations from the top candidates in each party, including competing events to mark Saturday’s third anniversary of the attack on the Capitol.

The eagerness from each man to paint the other as an imminent threat signals that their potential rematch this year will be framed as nothing short of a cataclysmic battle for the future of democracy — even as Mr. Trump tries to twist the very idea to suit his own ends.

“Donald Trump’s campaign is about him — not America, not you,” Mr. Biden said Friday, speaking near Valley Forge in Pennsylvania. “Donald Trump’s campaign is obsessed with the past, not the future. He’s willing to sacrifice our democracy, put himself in power.”

On Friday evening, at his own rally in Sioux Center, Iowa, Mr. Trump fired back, calling Mr. Biden’s remarks “pathetic fear-mongering” and again accusing him, without any evidence, of wielding federal law enforcement to attack his political opponents.

 

“We all know who Donald Trump is. The question we have to answer is who are we.”

— Biden at Valley Forge

World Crisis Radio, Weekly Strategic News Summary: In powerful campaign kickoff at start of year of destiny, President brands Trump as holding webster tarpley 2007a dagger to the throat of democracy since January 6 MAGA insurrection, Webster G. Tarpley, (right, historian and commentator), Jan. 6, 2024 (141 mins.). Cites George Washington’s ”sacred cause” of independence;

Liberty, freedom, and democracy are on the 2024 ballot, along with the MAGA alternative of totalitarian fascist dictatorship; As FDR noted, needy people cannot be free, so content of freedom and democracy is not only political rights, but also return to economic progress after nightmare of plutocratic globalization-as in today’s sustained job creation of 216,000 jobs and full employment jobless rate of 3.7%, continuing longest stretch below 4% since Vietnam war;

Legality under Constitution is indivisible, meaning that Insurrection Clause of XIV Amendment bans Trump from second term, despite whining from faint-hearted centrists and liberals from Newsom to the Washington Post; Scalia majority opinion in 1989 Midland Asphalt case limiting interlocutory appeals may rule out Trump’s delaying tactics in his immunity appeal;

Gaza death toll among Palestinians approaches twenty times the victims of October 7 terrorist attacks; US attempt to prevent spread of Gaza war is failing as conflict metastasizes across Middle East; with Netanyahu further weakened by defeat in Supreme Court, opportunity emerges to speed his replacement; Blinken starts mission to Middle East;

To enhance White House performance, time for departure of inept Chief of Staff Zients and AG Garland, who has failed to enforce law vs Congressional insurrectionists;

A mirror for modern squadristi: Shameful track record of ultra-left sectarian fratricide over a century features treachery of German KPD in enabling 1933 Nazi seizure of power;  Best wishes to those marking Epiphany!

ny times logoNew York Times, Analysis: Three Years After Jan. 6, Trump’s Immunity Claims to Take Center Stage, Alan Feuer and Charlie Savage, Jan. 6, 2024. An appeals court will hear arguments on Tuesday over the former president’s attempt to shut down the federal election case. Much is riding on how — and how quickly — the issue is decided.

Three years after a mob of his supporters stormed the Capitol, former President Donald J. Trump will make his latest and potentially most consequential argument in the coming week for why he should not be held responsible for seeking to overturn the 2020 election.

Impeachment proceedings, the House Jan. 6 committee’s inquiry and two separate criminal investigations have established a comprehensive set of facts about Mr. Trump’s deep involvement in overlapping efforts to remain in office despite having been defeated at the polls.

But when — or even whether — he will ultimately face a trial on charges related to those efforts remains unclear. One of the most decisive factors in getting an answer to those questions will be the success or failure of the arguments his legal team plans to make on Tuesday in a federal appeals court in Washington.

Mr. Trump’s lawyers are banking on a long shot, hoping to convince a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that the Constitution affords him complete immunity from actions he undertook as president. The assertion, while untested in the courts, has the advantage to the former president of chewing up time in the service of his strategy of trying to delay any trial until after Election Day.

Should Mr. Trump be elected, he could seek to order the federal charges against him to be dropped. The pace and outcome of the appellate challenges stemming from his immunity claim could also affect the timing of the three other criminal cases he is facing.

The legal maneuvering is playing out against a backdrop in which President Biden is casting the 2024 campaign as a test of whether democratic norms and institutions can hold against Mr. Trump and his push to convince voters that he is not a perpetrator of the chaos of Jan. 6 but a victim of an effort to silence him and his supporters.

Mr. Trump has been making plans to attend the appeals court hearing even though he is not required to be there, a further indication of how central fighting his prosecutions has become to his political strategy heading into the Republican primary campaign.

ny times logoNew York Times, The Supreme Court agreed to decide whether Donald Trump was ineligible for Colorado’s G.O.P primary ballot, Adam Liptak, Updated Jan. 6, 2024. The Colorado Supreme Court ruled last month that the former president could not appear on the state’s Republican primary ballot because he had engaged in insurrection.

The Supreme Court agreed on Friday to decide whether former President Donald J. Trump is eligible for Colorado’s Republican primary ballot, thrusting the justices into a pivotal role that could alter the course of this year’s presidential election.

The sweep of the court’s ruling is likely to be broad. It will probably resolve not only whether Mr. Trump may appear on the Colorado primary ballot after the state’s top court declared that he had engaged in insurrection in his efforts to subvert the 2020 election, but it will most likely also determine his eligibility to run in the general election and to hold office at all.

Not since Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush, has the Supreme Court taken such a central role in an election for the nation’s highest office.

The case will be argued on Feb. 8, and the court will probably decide it quickly. The Colorado Republican Party had urged the justices to rule by March 5, when many states, including Colorado, hold primaries.

The number of challenges to Mr. Trump’s eligibility across the country can only have added pressure on the court to hear the Colorado case, as they underscored the need for a nationwide resolution of the question.

The case is one of several involving or affecting Mr. Trump on the court’s docket or on the horizon. An appeals court will hear arguments on Tuesday on whether he has absolute immunity from prosecution, and the losing side is all but certain to appeal. And the court has already said that it will rule on the scope of a central charge in the federal election-interference case in a decision expected by June.

Mr. Trump asked the Supreme Court to intervene after Colorado’s top court disqualified him from the ballot last month. That decision is on hold while the justices consider the matter.

Jena Griswold, Colorado’s secretary of state, pressed the Supreme Court to act fast.

“Coloradans, and the American people, deserve clarity on whether someone who engaged in insurrection may run for the country’s highest office,” she said in a statement.

Mr. Trump acknowledged the court’s decision to hear the case at a rally Friday in Sioux Center, Iowa, saying he hoped the justices would fairly interpret the law. “All I want is fair; I fought really hard to get three very, very good people in,” he said, referring to his appointees. He added, “And I just hope that they’re going to be fair because, you know, the other side plays the ref.”

The case turns on the meaning of Section 3 of the 14th Amendment, ratified after the Civil War, which bars those who had taken an oath “to support the Constitution of the United States” from holding office if they then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Congress can remove the prohibition, the provision says, but only by a two-thirds vote in each chamber.

Jan. 1

 

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

The official portrait of the U.S. Supreme Court

washington post logoWashington Post, Roberts sidesteps Supreme Court’s ethics controversies in yearly report, Ann E. Marimow, Jan. 1, 2024 (print ed.). The Supreme Court will be tested in the coming weeks to untangle politically consequential legal questions with the potential to reshape the 2024 presidential election. The court’s reputation remains marred by ethics controversies involving lavish travel and gifts, and public approval ratings remain low following high court rulings to overturn long-standing precedent.

john roberts oBut Chief Justice John G. Roberts Jr., right, did not address any of those contemporary issues Sunday in his annual “Year-end Report on the Federal Judiciary.” Instead, he looked back on technological advancements in the nation’s court system, detailing developments from the quill pens used by justices in the 19th century to electronic databases of the 1980s to online trial proceedings prompted by the coronavirus pandemic.

Roberts, a history buff, also expounded on the potential for artificial intelligence to both enhance and detract from the work of judges, lawyers and litigants. For those who cannot afford a lawyer, he noted, AI could increase access to justice.
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“AI obviously has great potential to dramatically increase access to key information for lawyers and non-lawyers alike. But just as it risks invading privacy interests and dehumanizing the law,” Roberts wrote, adding that “machines cannot fully replace key actors in court.”

Public approval of the Supreme Court remains at historically low levels, reflecting a dip that followed its 2022 decision to overturn Roe v. Wade and eliminate the nationwide right to abortion. The court has also faced immense public pressure and criticism following news reports that some justices accepted, but did not disclose, luxury travel funded by billionaire friends.

Chief Justice John G. Roberts's 2023 year-end report

Roberts also did not mention in his 13-page report the court’s adoption for the first time of a formal code of conduct, announced in November, specific to the nine justices and intended to promote “integrity and impartiality.” For years, the justices said they voluntarily comply with the same ethical guidelines that apply to other federal judges and resisted efforts by Congress to impose a policy on the high court.

But the lack of a code became a persistent complaint from Capitol Hill that the justices were forced to address in 2023. In the weeks before the court’s announcement, several justices said publicly it would be a good idea for the court to embrace its own plan rather than giving Congress an opening to pass a law.

Supreme Court, under pressure, issues ethics code specific to justices

The policy was praised by some as a positive initial step, but criticized by legal ethics experts for giving the justices too much discretion over recusal decisions and for not including a process for holding the justices accountable if they violate their own rules.

 

December

Dec. 30

World Crisis Radio, Weekly Strategic News Summary and Pro-Democracy Reform Agenda: In 2024, Americans have a rendez-vous webster tarpley 2007with destiny, with the future of human civilization at stake! Webster G. Tarpley, (right, historian and commentator), Dec. 30, 2023 (130:12 mins). Coming year must see the decisive electoral defeat, conviction, and incarceration of Trump, with the breakup of the moribund Republican Party, and three branches of the federal government entirely controlled by Biden Democrats elected on a strong reform agenda!

Insurrection Clause of Fourteenth Amendment is the sacred embodiment of Lincoln’s new birth of freedom and reflects the sacrifices of the Union dead; As part of Constitution, the Insurrection Clause is an integral part of the supreme Abraham Lincoln (Alexander Gardner via Library of Congress and Getty Images)law of the land and is binding and compulsory for all officials at all levels of government, whatever their preferences;

Alleged aversion to ”patchwork” of election rules and demand for lockstep among states are no argument in a variegated federal system in which election practices have long diverged; Trump is unquestionably guilty of aggravated insurrection; Only an imbecile could suggest that a president is not an officer of United States; Some say they prefer to defeat Trump at polls, but the advanced fascist emergency does not permit this luxury;

Defeatist spirit of McClellan 1864 grips milquetoast Democrats who propose to ignore a clear Constitutional imperative in favor of their own fears and preferences for appeasement of MAGA fascists; Standard fascist seizure of power involves cynical gaming of democratic systems and guarantees to impose totalitarian dictatorship;

”Let the voters decide” is a catchy slogan but collapses utterly when it becomes a direct attack on the Constitution, where some critical points are deliberately placed beyond the reach of majority votes;

gavin newsom headshotGov. Newsom, right, and Dems must understand their only chance to prevail against Trump subversion is to run strong candidates pledged to defend constitution, not populist demagogues pandering to masses by tampering with it;

Corrupt, discredited, bribed, and hated Supremes should contemplate not just the threats of the shrinking MAGA hooligan minority, but also the pro-constitution supermajority who reject a return to the MAGA fascist yoke; Given their claims to represent originalism, textualism, and state’s rights, the only valid choice for Supremes is full implementation of Insurrection Clause against Trump;

scott perryRep. Scott Perry’s phone messages (he is shown at right) now scrutinized by Jack Smith could implicate other MAGA Hill bigwigs as January 6 co-conspirators, with potential to break legislative logjam and flip chamber as they are brought to justice;

House GOP sabotage of Ukraine military aid facilitates deadly Russian attacks and makes these MAGA bosses accessories to war crimes eligible for prosecution in The Hague, starting with MAGA Mike;

djt maga hatMAGA dirty tricks against Ukraine feed Putin’s hope for new orgy of appeasement on model of 1938 Munich sellout, with himself cast as Hitler, Ukraine cast as Czechoslovakia, and Biden-led NATO cast as appeasers Chamberlain and Daladier!

As their hour of reckoning approaches, Netanyahu, Gallant & Co. are trying harder than ever to embroil US in war with Hezbollah and Iran; These schemers must receive a decisive rebuff;

In US, fratricidal ultra-lefts and assorted squadristi are eager to blame Biden for war crimes committed by Netanyahu, but stubbornly refuse to condemn Putin for the war crimes Putin has unquestionably committed! Reviewing Toni Negri, in whose career postmodern anarcho-syndicalism turned into the ideology of terrorism.; 

Dec. 26

 

ICE logo

ny times logoNew York Times, How Trump Plans to Wield Power in 2025: What We Know, Jonathan Swan, Maggie Haberman and Charlie Savage, Dec. 26, 2023. Donald J. Trump and his allies are already laying the groundwork for a possible second Trump presidency, forging plans for an even more extreme agenda than his first term.

Since beginning his 2024 presidential campaign, Donald J. Trump has said the “termination” of the Constitution would have been justified to overturn the 2020 election, told followers “I am your retribution” and vowed to use the Justice Department to prosecute his adversaries — starting with President Biden and his family.

FBI logoBeneath these public threats is a series of plans by Mr. Trump and his allies that would upend core elements of American governance, democracy, foreign policy and the rule of law if he regains the White House.

Some of these themes trace back to the final period of Mr. Trump’s term in office. By that stage, his key advisers had learned how to more effectively wield power and Mr. Trump had fired officials who resisted some of his impulses and replaced them with loyalists. Then he lost the 2020 election and was cast out of power.

CIA LogoSince leaving office, Mr. Trump’s advisers and allies at a network of well-funded groups have advanced policies, created lists of potential personnel and started shaping new legal scaffolding — laying the groundwork for a second Trump presidency they hope will commence on Jan. 20, 2025.

In a vague statement, two top officials on Mr. Trump’s campaign have sought to distance his campaign team from some of the plans being developed by Mr. Trump’s outside allies, groups led by former senior Trump administration officials who remain in direct contact with him. The statement called news reports about the campaign’s personnel and policy intentions “purely speculative and theoretical.”

The plans described here generally derive from what Mr. Trump has trumpeted on the campaign trail, what has appeared on his campaign website and interviews with Trump advisers, including some who spoke with The New York Times at the request of the campaign.
Trump wants to use the Justice Department to take vengeance on his political adversaries.

If he wins another term, Mr. Trump has said he would use the Justice Department to have his adversaries investigated and charged with crimes, including saying in June that he would appoint “a real special prosecutor to go after” President Biden and his family. He later declared in an interview with Univision that he could, if someone challenged him politically, have that person indicted.

Allies of Mr. Trump have also been developing an intellectual blueprint to cast aside the post-Watergate norm of Justice Department investigatory independence from White House political direction.

Foreshadowing such a move, Mr. Trump had already violated norms in his 2016 campaign by promising to “lock up” his opponent, Hillary Clinton, over her use of a private email server. While president, he repeatedly told aides he wanted the Justice Department to indict his political enemies, including officials he had fired such as James B. Comey, the former F.B.I. director. The Justice Department opened various such investigations but did not bring charges — infuriating Mr. Trump and leading to a split in 2020 with his attorney general, William P. Barr.

Dec. 24

 

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

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

ny times logoNew York Times, Clarence Thomas’s Clerks: An ‘Extended Family’ With Reach and Power, Abbie VanSickle and Steve Eder, Dec. 24, 2023. The Supreme Court justice has built a network of former clerks who wield influence at universities, law firms and the highest rungs of government.

In late August, amid a rising outcry over revelations that Justice Clarence Thomas had received decades of undisclosed gifts and free luxury travel, a lawyer in Chicago fired off an email to her fellow former Thomas clerks.

“Many of us have been asked recently about the justice,” wrote the lawyer, Taylor Meehan. “In response, there’s not always the opportunity to tell his story and share what it was like to work for him. And there’s rarely the opportunity for us to do so all together.”

Ms. Meehan attached a letter in support of Justice Thomas. Minutes later came a reply. “I just had to jump up right away and say bravo for this,” wrote Steven G. Bradbury, a Heritage Foundation fellow who served in the George W. Bush and Trump administrations. Within days Fox News viewers were hearing about the letter, now signed by 112 former clerks and testifying that the justice’s “integrity is unimpeachable.” Among the signers was the popular Fox host Laura Ingraham.

In turn, the justice’s wife, the conservative activist Virginia Thomas, soon took to the clerks’ private email listserv. “We feel less alone today, because of you all!!! 🙏💕💕💕” she wrote, offering special thanks to the letter’s coordinators and all “who stepped into our fire!!!”

In the 32 years since Justice Thomas came through the fire of his confirmation hearings and onto the Supreme Court, he has assembled an army of influential acolytes unlike any other — a network of like-minded former clerks who have not only rallied to his defense but carried his idiosyncratic brand of conservative legal thinking out into the nation’s law schools, top law firms, the judiciary and the highest reaches of government.

 

leonard leo ap carolyn kaster

 Ultra-right Republican dark money legal powerbroker Leonard Leo is shown above. He is known as an honorary "clerk" because of his special attention to the justice's financial well-being.

The former clerks’ public defense of the justice was “unparalleled in the history of the court,” said Todd C. Peppers, a professor of public affairs at Roanoke College and the author of Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk. “It’s frankly astonishing.”

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ny times logoNew York Times, Analysis: Any Other Politician Would Have Bowed Out. Donald Trump? Not a Chance, Michael C. Bender, Dec. 24, 2023 (print ed.). This week’s debate over his eligibility for office is another reminder that anyone else facing similar scandal would have left the political stage long ago.

ny times logoNew York Times, The Supreme Court helped Donald Trump’s delay strategy. Here’s how his appeals process might unfold, Alan Feuer, Dec. 24, 2023 (print ed.). The former president’s claim that he is immune from prosecution will now be taken up by a federal appeals court — and could end up back in front of the justices within weeks.

The Supreme Court’s decision on Friday not to fast-track consideration of former President Donald J. Trump’s claim that he is immune to prosecution on charges of plotting to overturn the 2020 election was unquestionably a victory for Mr. Trump and his lawyers.

The choice by the justices not to take up the issue now — rendered without explanation — gave a boost to the former president’s legal strategy of delaying the proceedings as much as possible in the hopes of running out the clock before Election Day.

It is not clear, however, that the decision holds any clues to what the Supreme Court might think of the substance of his immunity claim. And the degree to which it pushes off Mr. Trump’s trial will only be determined in coming weeks as the clash over whether he can be prosecuted plays out in the federal appeals court in Washington — and then perhaps makes its way right back to the justices.

How the Supreme Court handles the case at that point could still have profound implications, both for whether the federal election interference indictment will stand and for whether Mr. Trump might succeed in pushing a trial past the election. At that point, if he wins the presidency, he could order the charges to be dropped.

Dec. 23

ny times logoNew York Times, Opinion: The Supreme Court’s Big Trump Test Is Here, Steven V. Mazie and Stephen I. Vladeck, Dec. 23, 2023. Mr. Mazie is the author of “American Justice 2015: The Dramatic Tenth Term of the Roberts Court.” Mr. Vladeck is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”

A generation after the Supreme Court stepped into a disputed presidential election, America is experiencing a creeping sense of déjà vu. Twenty-three years ago, a bare majority of the justices halted a recount in Florida, effectively handing the presidency to George W. Bush.

The specter of Bush v. Gore, the case that stands as a marker of how not to resolve searing political disputes, looms large as the Supreme Court is being called upon to address controversies with profound implications for the fortunes of the Republican front-runner in 2024.

The justices are feeling the heat nearly a year in advance of an election rather than in the fraught weeks following the vote. The questions today are more complex — there are at least three separate matters, not one — and all revolve around the Capitol insurrection that transpired across the street from the Supreme Court Building in 2021.

On Friday, the court turned down Special Counsel Jack Smith’s request for fast-track review of Donald Trump’s claim that former presidents have “absolute immunity” from criminal prosecution for their conduct while in office. But that critical question will almost certainly return to the Supreme Court soon: The D.C. federal appeals court is hearing the case on Jan. 9 and will probably rule shortly thereafter.

The court has agreed to hear a case asking whether Jan. 6 rioters can be charged with obstructing an official proceeding, another key part of Mr. Smith’s Jan. 6 case against Mr. Trump. And most dramatically, the former president will surely ask the justices to reverse a ruling of the Colorado Supreme Court that, if affirmed, could pave the way for an untold number of states to erase his name from the ballot.

For a tribunal that is supposed to sit far away from, not astride, politics, that’s a lot for the Supreme Court to handle. And this is happening at a rough moment for the court. In August 2000, on the eve of Bush v. Gore, 62 percent of Americans approved of how the Supreme Court was conducting itself. Now, recent polling shows that nearly that portion (58 percent) disapproves of the institution, a figure that scrapes historic lows for the court.

Yet the multiplicity of cases affords the justices an opportunity to avoid pinning themselves in still further if they keep an eye on how potential decisions will — collectively — shape the political landscape. The point is not that getting the underlying legal questions “right” is irrelevant. But when the stakes are this high and the legal questions are novel, the justices have a duty to hand down decisions that resonate across the political spectrum — or at least that avoid inciting violence in the streets. That’s not subverting the rule of law; it’s preserving it.

Extraordinary times call for a court that embraces the art of judicial statecraft.

The trap the court finds itself in is largely a function of its own behavior, both on and off the bench. The 6-to-3 conservative supermajority has radically expanded gun rights, circumscribed the Environmental Protection Agency’s ability to protect the environment, all but eviscerated race-based affirmative action, punched holes through the wall separating church from state and — most notoriously — eliminated the constitutional right to abortion. The past year has also seen increasing public scrutiny of the justices’ apparent ethical lapses, sunlight that pushed the justices to adopt their first code of ethics.

A universe in which the court somehow splits the difference — for example, keeping Mr. Trump on the ballot while refusing to endorse (if not affirmatively repudiating) his conduct and spurning his kinglike claim to total immunity — could go a long way toward reducing the temperature of the coming election cycle. Such an outcome could also help restore at least some of the court’s credibility.

We understand that trying too hard to project an image of nonpartisanship carries risks. Recent reporting on the twists and turns of how the conservative majority engineered the end of Roe v. Wade shows how curating rulings can make justices look too clever by half — if not outright deceptive. Delaying the grant of review in the Dobbs v. Jackson Women’s Health Organization case, in which some of the conservative justices apparently knew they had the votes to overrule Roe, created a false impression that the court was struggling over the matter — when the reality was anything but. Indeed, the Dobbs experience and its aftermath might have led some justices to sour on the idea of judicial statecraft — especially if their internal deliberations end up getting leaked to the press. No jurist wants to be seen as a cunning manipulator of public opinion.

And yet, some of the court’s most important rulings across its history have represented just the kind of high constitutional politics that we believe are called for now. The court’s recognition of its power to strike down acts of Congress in Marbury v. Madison came in a context in which the direct effect of the ruling was to restrain the court while slapping the Jefferson administration on the wrist.

Its concerted effort to produce unanimous opinions in some of the landmark civil rights cases of the 1950s and 1960s reflected a view that speaking in one voice was more important than the legal nuances of what was said. (This, perhaps, is why no justice publicly dissented from Friday’s decision not to fast-track the immunity question.)

The court’s landmark rejection of President Richard Nixon’s executive privilege claim in the Watergate tapes case, which helped to directly precipitate Nixon’s resignation, came in a unanimous opinion written by Nixon’s handpicked chief justice.

This is also the best way to understand Chief Justice John Roberts’s much-maligned 2012 vote in the first serious challenge to the Affordable Care Act — upholding the individual mandate as a tax while rejecting it as a valid regulation of interstate commerce.

What those (and other) rulings have in common was the sense, across the Supreme Court, that the country would be better off with a court that took appropriate measure of how its rulings would be received beyond the details of the legal analysis the justices provided.

The court failed that test in Bush v. Gore — handing down a ruling widely perceived as Republican-appointed justices installing a Republican president via a strained (and oddly cabined) reading of the Equal Protection Clause and helping to precipitate the downturn in public opinion that figures so prominently in these cases.

As the Jan. 6 cases put the justices right in the middle of the 2024 election, the question is whether they’ll understand the imperative of not letting history repeat.

Ultimately, these contemporary disputes may not provide a perfect opportunity for the Supreme Court to right that wrong. But if one thing’s for certain, it’s that neither the court nor the country can afford another election-altering ruling that takes such obvious partisan sides.
More on the Supreme Court

Steven V. Mazie (@stevenmazie) is the author of “American Justice 2015: The Dramatic Tenth Term of the Roberts Court” and is the Supreme Court correspondent for The Economist. Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, writes the One First weekly Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”

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washington post logoWashington Post, Supreme Court won’t expedite ruling on Trump’s immunity claim, Robert Barnes, Dec. 23, 2023 (print ed.). Special counsel Jack Smith said expedited review by Supreme Court was needed to keep Donald Trump’s D.C. election-obstruction trial on track for early March.

The Supreme Court on Friday said it will not fast-track consideration of Donald Trump’s claim that he is immune from prosecution for actions he took as president, a question crucial to whether he can be put on trial for plotting to overturn the results of the 2020 election.

Dec. 23

World Crisis Radio, Weekly Strategic Analysis: Setting example for other states, Colorado’s High Court disqualifies Trump from GOP primary webster tarpley 2007ballot, defending US Constitution against MAGA fascism! Webster G. Tarpley, (right, historian and commentator), Dec. 23, 2023 (102:22 mins.). 54% of Americans back move, including 24% of Republicans, a number that potentially dooms Don’s bid for power;

Ruling leaves no doubt that Trump was kingpin of insurrection for violent overthrow US government; Corrupt Thomas-Alito court boxed in; Two, three, many states must now disqualify would-be dictator;

Abraham Lincoln (Alexander Gardner via Library of Congress and Getty Images)As monument to epic sacrifices of Union dead, Fourteenth Amendment is essence of New Birth of Freedom foreseen by Lincoln (shown above in an Alexander Gardner photo via the Library of Congress and Getty Images) as second founding of this country; Prime movers Thad Stevens and Sen. Sumner loom as moral giants whose radicalism frightens the cowardly pols, trimmers, and media hacks of today;

Imbecilic and dishonest calls to let the voters decide ignore the wisdom acquired at great cost by the victors in a bloody Civil War; Intent was to bar infamous, hardened traitors from federal office; Trump’s exclusion is objective and Constitutional, just like barring foreign born and teenagers from presidency;

Given sabotage by House MAGA Quislings, Biden should order billions in emergency military aid to Ukraine, shielding Europe from Putin’s aggression; $300 billion in frozen Russian assets must be expropriated now and transferred to Kyiv as combined Lend Lease and Marshall Plan to finance defense and postwar reconstruction;

Federal judge orders texts, emails, and phone records from MAGA Congressman Scott Perry’s phone turned over to Jack Smith -- A first step towards finally indicting the Congressional coup plotters who backed January 6, who are the same clique trying to destroy Ukraine;

US takes step away from Netanyahu’s war crimes by abstaining on UNSC resolution mandating humanitarian aid; Experts question if Israel is losing Gaza war militarily after mauling of elite Golani brigade and suspected heavy losses; US assembles ten-power coalition for freedom of navigation Red Sea, where 12% of world trade is threatened by Iran’s Houthi proxies;

Phone tapes said to depict Trump and RNC’s Ronna McDaniel coercing Detroit election officials to sabotage Wayne County vote count in 2020;

Glorieta March 1862: How Colorado Union regiments stopped Texas troops from extending the slaveholder Confederacy to the Pacific in a neglected battle rightly called The Gettysburg of the West.

Breaking: Renegade Supremes feed Trump delaying strategy, deny Jack Smith’s bid to fast track Don’s absurd claim to blanket immunity as president!

Dec. 21

ny times logoNew York Times, Trump Ruling in Colorado Will Test Conservative Approach to Law, Charlie Savage, Dec. 21, 2023 (print ed.). A ruling that Donald Trump is ineligible for the presidency will test the court’s methodological values.

The ruling by Colorado’s Supreme Court that former President Donald J. Trump is ineligible to be president again because he engaged in an insurrection has cast a spotlight on the basis for the decision: the Constitution’s 14th Amendment, which includes a clause disqualifying people who violated their oaths of office from holding government positions in the future.

Mr. Trump has vowed to appeal to the Supreme Court. It is dominated by a supermajority of six justices who emerged from the conservative legal movement, which values methods of interpretation known as textualism and originalism. Under those precepts, judges should interpret the Constitution based on its text and publicly understood meaning when adopted, over factors like evolving social values, political consequences or an assessment of the intended purpose of the provision. 

Proof, Investigative Commentary: It’s Almost Certain No Supreme Court Justices Will Recuse Themselves From the Case of the Century. But seth abramson graphicOrdinarily, They Might All Have To, Seth Abramson, left (author, lawyer, professor), Dec. 20-21, 2023. The United States Supreme Court has innumerable ways to reply to the recent major breaking news in Colorado—which saw the Colorado Supreme Court remove 2024 Republican Party frontrunner and former twice-impeached president Donald Trump from the 2024 GOP primary ballot in Colorado on the basis of him meeting the legal definition of an “insurrectionist” under Section 3 of the Fourteenth Amendment to the United States Constitution.

seth abramson proof logoThe Colorado Supreme Court immediately stayed the execution of its order so that the SCOTUS could take up Trump’s inevitable appeal. Which it certainly will.

Anderson v. Griswold is undoubtedly “the case of the century”—given that Bush v. Gore was decided on December 12, 2000, making it technically the last great case of the last century—and more or less every attorney nationwide (this author included) expects the Supreme Court to announce that it is taking up the case sometime before January 4, 2024, the day on which (if SCOTUS hasn’t acted by then) the Colorado Supreme Court stay would be lifted and Colorado Secretary of State Jena Griswold be ordered to remove Trump from the state’s 2024 primary ballot (which would inevitably lead to a subsequent proceeding removing him from the state’s general-election ballot, also).

The general sense among legal analysts, this one included, is that the Supreme Court will feel that it must act on this issue and do so as quickly as possible. And that’s not just for the sake of those of Americans who know (not as a matter of opinion but fact) that Trump is an active insurrectionist who’s done far more to try to realize a tinpot tyranny in the United States than he’s charged with in his federal criminal case in Washington, D.C. or his state criminal case in Georgia.

If, in the view of one of the most conservative Supreme Courts in American history, Trump isn’t eligible to serve in public office again, the GOP will need to (i) cast about for an alternative, whether it’s Nikki Haley or Ron DeSantis or another Trump (e.g., Donald Trump Jr. or Eric Trump) who wages an unprecedented MAGA convention “coup” at the Republican National Convention in Milwaukee in mid-July 2024, and (ii) deal with the certainly dramatic—and potentially even violent—fallout of losing its frontrunner at a time the man commands about 65% of the national GOP-primary vote.

But what SCOTUS can’t do—not after this week—is play at aloofness from the stark consequences of whatever it decides.

And it’s some additional breaking news from this week that explains why that is.

What would the would-be rioters have done if they couldn’t have gotten onto Capitol grounds, let alone inside the Capitol building itself?

Indeed, as a far-right armed rebellion against the United States government unfolded on January 6, it was entirely possible that a sprawling Supreme Court event could have been—had the Capitol been better defended—that horrible day’s main target, instead.

Which brings us to a most uncomfortable question: is it inappropriate for journalists to note that a second Trump term puts every Supreme Court Justice in immediate mortal danger? After all, the justices would invariably have to rule at some point in the future that Trump can’t serve a third term as he aims to do, so there can be no question that the Justices—perhaps even all nine of them—will be aligned against Trump going forward in much the same way most of Congress was on January 6.

Having said all this, judges don’t ordinarily recuse themselves because of their fear of potential future harms emanating from one of the parties before them. If the courts habitually did this, what judge would sit on any case that could end with a displeased party? Indeed, as I know from having practiced criminal law for years, there are even situations in which a judge stays on a case even after he or she has been threatened by a party. But what we’re speaking of in this instance—in Anderson v. Griswold—is quite different.

Why? Because this entire case is about the manner of threat Trump posed on January 6, and because the evidence in play relates not just to what Trump said and did at the end of 2020 and in early 2021 but what he’s already said about 2024 and (yes) 2028—words that implicate the future safety of the very federal judges Trump is about to ask to rule in Anderson v. Griswold.

Putting aside the fact that Justice Clarence Thomas should already be recused from any January 6-related case, including this one—his wife supported Donald Trump’s insurrection publicly and privately—the whole court is implicated within Anderson v. Griswold merely by the fact that an armed attack on, and occupation of, their place of business is part of the evidence relevant to the case.

So why isn’t anyone in American media discussing this unprecedented conundrum?

Dec. 19

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.)

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.  (AP pool photo by Jacquelyn Martin.)

Politico, Florida man pleads guilty to threatening to kill Supreme Court justice, Josh Gerstein, Dec. 19, 2023 (print ed.). The chief justice was his target, a court-ordered psychologist report says.

politico CustomA Florida man has pleaded guilty to threatening to kill a Supreme Court justice, the Justice Department said Monday.

Neal Sidhwaney, 43, of Fernandina Beach, entered a guilty plea Friday in federal court in Jacksonville, Florida, to a single felony count of making an interstate threat to injure, court records show.

Sidhwaney made the threat twice in a voicemail message left on July 31, 2023, according to court filings.

Prosecutors did not identify the targeted justice in court papers or in the statement Monday. But, during a court-ordered psychological evaluation, Sidhwaney said he had threatened Chief Justice John Roberts.

In the voicemail, Sidhwaney introduced himself and he had a message that he wanted the U.S. Marshals to deliver to Roberts that included “I will fucking kill you,” according to a court a court document filed in connection with the plea hearing last week.

Sidhwaney was arrested in August and has been in custody since. The psychologist who evaluated him found the defendant competent to stand trial and of “superior” intelligence, but suffering from “delusional disorder with psychosis.” He’s under treatment with an anti-psychotic drug, the doctor said.

Sidhwaney could receive up to five years in prison on the charge, but defendants typically receive less time under federal guidelines.

The court filings don’t indicate what, if any, action by the court prompted the threat.

Security around the high court and the justices has been stepped up since last year, when the high-profile abortion case decided by the court prompted a surge in threats.

A California man, Nicholas Roske, was discovered outside Justice Brett Kavanaugh’s Maryland home in June 2022. He has pleaded not guilty to attempting to assassinate the judge and is being held pending trial.

Dec. 18

Meidas Touch Network, Supreme Court Makes UNEXPECTED Move that has MAGA Totally Pissed Off, Michael Popok, Dec. 18, 2023. The United States Supreme Court, for now, has ALLOWED AN ASSAULT WEAPONS BAN to remain in place as it refused to hear the case on appeal. Michael Popok of Legal AF explains what happens next across the country and the record mass shooting epidemic now that the Illinois statute remains in place, and whether the Supremes are likely to change their mind in the near future.

Dec. 16

 

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ny times logoNew York Times, Investigation: Behind the Scenes at the Dismantling of Roe v. Wade, Jodi Kantor and Adam Liptak, Dec. 16, 2023 (print ed.). This is the inside story of how the Supreme Court overturned the constitutional right to abortion — jumping guardrails and shooting down compromise.

On Feb. 10 last year, Justice Samuel A. Alito Jr. showed his eight colleagues how he intended to uproot the constitutional right to abortion.

At 11:16 a.m., his clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women’s Health Organization. After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.

But this time, despite the document’s length, Justice Neil M. Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett M. Kavanaugh. None requested a single alteration. The responses looked like a display of conservative force and discipline.

In the months since, that draft turned into a leak, then law, then the rare Supreme Court decision that affects the entire country, reshaping elections, the practice of medicine and a fundamental aspect of being female. The story of how this happened has seemed obvious: The constitutional right to abortion effectively died with Justice Ruth Bader Ginsburg, whom President Donald J. Trump replaced with a favorite of the anti-abortion movement, Justice Barrett.

But that version is far from complete. Justice Barrett, selected to clinch the court’s conservative supermajority and deliver the nearly 50-year goal of the religious right, opposed even taking up the case. When the jurists were debating Mississippi’s request to hear it, she first voted in favor — but later switched to a no, according to several court insiders and a written tally. Four male justices, a minority of the court, chose to move ahead anyway, with Justice Kavanaugh providing the final vote.

Those dynamics help explain why the responses stacked up so speedily to the draft opinion in February 2022: Justice Alito appeared to have pregamed it among some of the conservative justices, out of view from other colleagues, to safeguard a coalition more fragile than it looked.

The Supreme Court deliberates in secret, and those who speak can be cast out of the fold. To piece together the hidden narrative of how the court, guided by Justice Alito, engineered a titanic shift in the law, The New York Times drew on internal documents, contemporaneous notes and interviews with more than a dozen people from the court — both conservative and liberal — who had real-time knowledge of the proceedings. Because of the institution’s insistence on confidentiality, they spoke on the condition of anonymity.

Dec. 15

ny times logoNew York Times, Opinion: The Supreme Court Is ‘to the Ideological Right of Roughly Three-Quarters of All Americans,’ Linda Greenhouse (shown at right on the cover of her memoir), linda greenhouse cover just a journalistDec. 15, 2023. A few years before she left the Supreme Court in 2006, Justice Sandra Day O’Connor explained the relationship between courts and the public. As she saw it, courts were “mainly reactive institutions,” she wrote in The Majesty of the Law, a collection of her articles and speeches. “Rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus.”

In the days since Justice O’Connor’s death this month, that observation has received more attention than it did when the collection was published in 2003. I quoted from it in the obituary I wrote for The Times, and writers for other publications did as well. Its appeal was obvious.

sandra day oconnor oAs applied to Justice O’Connor, it provided a rationale for the nondoctrinaire, context-attentive approach she took toward deciding hard questions on issues like abortion, affirmative action and L.G.B.T.Q. rights. As applied to the court as an institution, it sounds comforting and reassuring. A reactive court is not a court that drives the country into unwelcome territory. A decision anchored in social consensus is one that by definition is unlikely to ignite still more social polarization.

Pondering Justice O’Connor’s words in recent days, I’ve come to a sad conclusion. Perhaps she was right 20 years ago. But from the perspective of today, she was wrong.

The Dobbs decision that erased the constitutional right to abortion 18 months ago was not “a careful byproduct of an emerging social consensus.” It was reckless, leading directly to this week’s grotesque drama in Texas, in which a desperate woman had to flee the state in order to follow her doctor’s advice and terminate a doomed pregnancy that threatened her fertility.

Far from reflecting an “emerging social consensus,” Dobbs flew in the face of a longstanding majority view in favor of retaining the right to abortion. The decision by five justices, all raised in the Catholic church, was indeed “reactive.” What it was reacting to was a religion-fueled political effort that spanned five decades and that in 2016 led a presidential candidate, Donald Trump, to promise that a court filled with his appointees would overturn Roe v. Wade “automatically.” There is no law in Dobbs, only the performance of something dressed up to look like law.

Dobbs is the most obvious but hardly the only current example of judicial activism that flies in the face of majority will. The court’s gun-rights jurisprudence has become so extreme, threatening so many long-accepted firearms regulations, that even some of the justices who voted in the majority in last year’s Bruen decision appeared to be taking cover last month when the question being argued was whether the Second Amendment actually requires leaving guns in the hands of domestic abusers.

The court’s invention a few years ago of something it calls the “major questions doctrine” would bleed authority out of the federal agencies that Congress created in the quaint belief that expertise deployed in the business of government is a good thing. The calls for dismantling the “administrative state” to which the court is responding come not from the public as a whole, but from a libertarian-conservative minority with a lot of money and the right friends in high places. Separately, a series of decisions has shown a Supreme Court majority determined to give religion a veto over laws and regulations designed to prevent discrimination and protect public health.

Dec. 12

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washington post logoWashington Post, Supreme Court will consider fast-tracking Trump appeal in D.C. trial, Devlin Barrett, Perry Stein, Robert Barnes and Rachel Weiner, Dec. 12, 2023 (print ed.). ‘The United States recognizes that this is an extraordinary request,’ special counsel Jack Smith wrote, calling it ‘an extraordinary case.’

The Supreme Court said Monday it will consider special counsel Jack Smith’s request to fast-track consideration of Donald Trump’s claim he is immune from prosecution for alleged election obstruction in 2020 — intensifying the legal jockeying over whether Trump’s criminal trial in D.C. will stay on schedule for early next year.

The decision by the nation’s highest court doesn’t mean that the justices will definitely short-circuit the typical appeals process, but it means they are going to hear arguments from both sides about whether they should act quickly. Trump’s lawyers were told to file briefs on the issue by Dec. 20.

The quick response by the Supreme Court came hours after Smith’s office filed its request seeking to essentially leapfrog an appeals court process that Trump has already started but which could take months to resolve. A lengthy appeal could slow the Justice Department’s push for a March trial for Trump, the front-runner for the 2024 GOP presidential nomination.

It is unusual for the government to ask the court to disrupt the judicial process, and to do so quickly. “The United States recognizes that this is an extraordinary request,” Smith wrote. “This is an extraordinary case.”

He added that without special intervention, the Supreme Court might not be able to consider the issue before the justices complete their term in June.

The timing of Trump’s four criminal cases is of paramount concern to both prosecutors and the former president’s legal team. Smith has also charged Trump in Florida with allegedly mishandling classified documents and obstructing government efforts to retrieve them; in addition, Trump faces state charges in New York for alleged hush money paid during the 2016 election, and in Georgia alleging a massive conspiracy to undo the 2020 election results in that state.

In the face of the four indictments, Trump has denied guilt and tried to push his trials beyond Election Day in November. Smith’s latest legal gambit aims to keep the Washington trial on its current schedule. That schedule calls for Trump’s D.C. trial to begin one day before the Super Tuesday primary — underscoring how messy next year’s political and legal calendars could be.

“It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected,” the filing from Smith argues.

The Trump campaign in a statement accused Smith of trying to interfere with the 2024 election, saying he “is willing to try for a Hail Mary by racing to the Supreme Court and attempting to bypass the appellate process … There is absolutely no reason to rush this sham to trial except to injure President Trump and tens of millions of his supporters.”

Trump’s legal team had earlier asked U.S. District Judge Tanya S. Chutkan to dismiss the charges against him, arguing that presidential immunity protects him from prosecution over his conduct during his waning days in office. Chutkan, who is overseeing the case, ruled against Trump, who plans to appeal that ruling.

That appeal, however, could take months and significantly delay the start of the trial. So Smith — the federal prosecutor appointed by Attorney General Merrick Garland to lead the investigation of Trump — is seeking to speed up the process by taking the highly unusual step of going directly to the Supreme Court after his office prevailed in District Court.

Smith argued in the filing that Trump’s legal claims of immunity “are profoundly mistaken, as the district court held. But only this Court can definitively resolve them.”

He noted that in recent years the court has granted requests to consider cases of “imperative public importance” before an appeals court had completed its review. Among them were challenges to President Biden’s attempt to forgive student loan debts; review of a Mississippi abortion law that led to overturning Roe v. Wade, and the proposed addition of a citizenship question to the census.

In arguing that the justices should take up the issue of Trump’s immunity right away, Smith cited the Supreme Court’s landmark United States v. Nixon decision, which ordered President Richard M. Nixon to deliver White House tapes and other documents to a federal district court. The unanimous ruling said a president does not have absolute immunity from subpoenas or other court actions.

The Supreme Court expedited consideration of the Nixon case, and delivered its opinion three weeks after oral argument.
U.S. District Judge Tanya S. Chutkan, former president Donald Trump and Smith. (AFP/Getty Images) (Handout/AFP/Getty Images)

Derek Muller, a University of Notre Dame law school professor, described Monday’s filing as rare and said Smith was asking the Supreme Court for “extraordinary relief.”

He said the Supreme Court is often reluctant to get involved when it doesn’t need to, but that there is no harm in Smith making the request as he explores every legal avenue to ensure the case proceeds on schedule.

“March 4th sounds like it is a long ways away — but it’s not. Especially when you have multiple layers of judicial review and pending appeals,” Muller said. “Smith’s team is trying to wrap up things as quickly as possible to eliminate uncertainty.”

Trump picked one-third of the sitting Supreme Court justices during his four years in office. But the former president does not have a winning track record at the high court. The justices turned aside requests from Trump and his supporters to get involved in challenges to the 2020 election results. It ruled against his claims that the presidency protected him from investigation and rejected his efforts to block release of his financial records.

Last year, the court refused Trump’s request to block the release of some of his White House records to the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol by a pro-Trump mob that was trying to heed his calls to overturn Joe Biden’s election victory. The justices also denied Trump’s effort to block a congressional committee from examining his tax returns after an extended legal battle.

ny times logoNew York Times, Texas Supreme Court Rules Against Woman Who Sought Court-Approved Abortion, J. David Goodman, Dec. 12, 2023 (print ed.). Hours before the ruling, a group representing the woman, whose fetus received a fatal diagnosis, said she was leaving Texas for an abortion.

texas mapThe Texas Supreme Court on Monday overturned a lower court order allowing an abortion for a pregnant woman whose fetus was diagnosed with a fatal condition, hours after her lawyers said she had decided to leave Texas for the procedure in the face of the state’s abortion bans.

The court ruled that the lower court made a mistake in ruling that the woman, Kate Cox, left, who is more than 20 weeks Kate Cox personal photo via Associated Presspregnant, was entitled to a medical exception.

In its seven-page ruling, the Supreme Court found that Ms. Cox’s doctor, Damla Karsan, “asked a court to pre-authorize the abortion yet she could not, or at least did not, attest to the court that Ms. Cox’s condition poses the risks the exception requires.” Texas’ overlapping bans allow for abortions only when a pregnancy seriously threatens the health or life of the woman.

“These laws reflect the policy choice that the Legislature has made, and the courts must respect that choice,” the court wrote.

The ruling, which applied only to Ms. Cox’s current pregnancy, suggested that the court would not be open to readings of the law that would expand the medical exception in Texas beyond all but the most serious cases. The fact that Ms. Cox decided to leave the state rather than wait for a ruling underscored the difficulty of seeking court permission for an abortion in the midst of a pregnancy.

Ms. Cox asked the lower court for approval after she learned that her fetus had a fatal condition, and after several trips to the emergency room. Her lawyers and her doctor argued that carrying the pregnancy to term risked her health and her future ability to have children.

The legal authorization she obtained from the lower court was put on hold when Ken Paxton, the state attorney general, appealed to the Texas Supreme Court. But uncertain of when a ruling would come, her lawyers said on Monday that she had decided to seek an abortion in a state where it is legal.

Dec. 11

  Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Tuesday, Aug. 1, 2023, at an office of the Department of Justice in Washington. A federal appeals court is hearing arguments Monday, Nov. 20, on whether to reinstate a gag order against Donald Trump in the federal case charging him with plotting to overturn the results of the 2020 presidential election (AP file photo by J. Scott Applewhite).

  Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Tuesday, Aug. 1, 2023, at an office of the Department of Justice in Washington. A federal appeals court is hearing arguments Monday, Nov. 20, on whether to reinstate a gag order against Donald Trump in the federal case charging him with plotting to overturn the results of the 2020 presidential election (AP file photo by J. Scott Applewhite).

ap logoAssociated Press, Special counsel asks Supreme Court to rule quickly whether former President Trump can be prosecuted, Staff Report, Dec. 11, 2023. Special counsel Jack Smith on Monday asked the Supreme Court to take up and rule quickly on whether former President Donald Trump can be prosecuted on charges he plotted to overturn the 2020 election results.

Justice Department log circularA federal judge ruled the case could go forward, but the Republican ex-president signaled he would ask the federal appeals court in Washington to reverse that outcome.

Smith is attempting to bypass the appeals court. The request for the Supreme Court to take up the matter directly reflects Smith’s desire to keep the trial, currently for March 4, on track and to prevent any delays that could push back the case until after next year’s presidential election.

“This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin,” prosecutors wrote.

OpEdNews, Opinion: Speaker Johnson: Meet the Constitution; Just Like the Two Presidents Johnson Did, Steven Jonas, right, Dec. 11, 2023. The stephen jonasUnited Sates has had two Presidents by the name of Johnson, Andrew (1865-69) and Lyndon (1963-69). Each had a major impact on The Constitution and U.S. Constitutional history. In my view, and that of many other historians, that impact was a negative one, and in each case shall be discussed briefly.

Consider this report (Mike Johnson: 'Depraved' America Deserves God's Wrath ' Provided by Rolling Stone) on how this man thinks and feels, about God [in my terms "God"], and the nation, and indirectly the Constitution --- I'll get back to that):

mike johnson o"In an October prayer call hosted by a Christian-nationalist MAGA pastor, Rep. Mike Johnson was troubled that America's wickedness was inviting God's wrath. Talking to pastor Jim Garlow on a broadcast of the World Prayer Network, Johnson spoke ominously of America facing a 'civilizational moment.' He said, 'The only question is: Is God going to allow our nation to enter a time of judgment for our collective sins? " Or is he going to give us one more chance to restore the foundations and return to Him?'

"The segment was filmed Oct. 3, just weeks before Johnson's unexpected rise to become speaker of the House. Garlow pressed the clean-cut Louisiana congressman to say 'more about this "time of judgment" for America.' Johnson replied: 'The culture is so dark and depraved that it almost seems irredeemable.' He cited, as supposed evidence, the decline of national church attendance and the rise of LGBTQ youth - the fact, Johnson lamented, that 'one-in-four high school students identifies as something other than straight.

"Discussing the risk of divine retribution, Johnson invoked Sodom, the Old Testament city destroyed by God for its wickedness with a rain of burning sulfur. Johnson is a polished orator, but in a closing prayer with Garlow he grew tearful. Johnson intoned, 'We repent for our sins individually and collectively. And we ask that You not give us the judgment that we clearly deserve.' "

And, consider an exchange with a journalist:

"House Speaker Mike Johnson (R-LA) explained the separation of church and state when cornered by CNBC co-anchor Andrew Ross Sorkin, calling it a 'misnomer' and emphasizing the influence of faith on public life. Johnson referenced historical figures such as Thomas Jefferson, George Washington, and John Adams in support of his view. 'The separation of church and state is a misnomer [italics added] people misunderstand it,' Johnson pressed."

And further still, at the recent gala of the National Association of Christian Lawmakers, Speaker Johnson had this to say:

" 'The Lord impressed upon my heart a few weeks before this happened that something was going to occur,' Johnson said. 'And the Lord very specifically told me in my prayers to prepare, but to wait. . . . I had this sense that we were going to come to a Red Sea moment in our Republican conference and in the county at large,' he continued. '[God] had been speaking to me about this, and the Lord told me very clearly to prepare and be ready.' Johnson said that once Rep. Kevin McCarthy was removed as Speaker of the House, God began to wake him up in the middle of the night 'to speak to me, [telling me] to write things down; plans, procedures, and ideas on how we could pull the [Republican] conference together.'

" 'At the time, I assumed the Lord was going to choose a new Moses and thank you, Lord, you're going to allow me to be Aaron to Moses,' Johnson declared."

Speaker Johnson (and possible future President Johnson --- God forbid [using that term not literally but rather as a commonly used turn-of-phrase in the English language]), meet the Constitution, and the place of "God" and religion --- or not --- in it.

Mike Johnson could, for example, be "turning to God for guidance," and then imposing God's suggestions, or even "God's Will," as law on the rest of us. That would be a major impact of a President Johnson on Constitutional government in the United States --- that might, or might not (heaven help us), happen.

Dec. 4

ny times logoNew York Times, Opinion: It’s Time to Fix America’s Most Dangerous Law, David French, right, Dec. 4, 2023 (print ed.). There is a land mine embedded in the United david french croppedStates Code, one that Donald Trump, if re-elected president, could use to destroy our republic. But it’s not too late for Congress to defuse the mine now and protect America.

I’m talking about the Insurrection Act, a federal law that permits the president to deploy military troops in American communities to effectively act as a domestic police force under his direct command. In theory, there is a need for a well-drafted law that permits the use of federal troops in extreme circumstances to maintain order and protect the rule of law. The Insurrection Act, which dates back to 1792 but has since been amended, is not, however, well drafted. And its flaws would give Trump enormous latitude to wield the staggering power of the state against his domestic political enemies.

These flaws are especially relevant because Trump and his allies are keenly aware of the act’s provisions and have long expressed interest in its use. Trump has publicly regretted not using more military force to suppress riots in the wake of George Floyd’s killing in 2020, there were suggestions that he utilize the act as part of his plot to steal the 2020 election, and now there are reports that Trump might invoke the act on the first day of his next term, to suppress demonstrations, to control the border or both.

Moreover, these reports have to be read in the context of Trump’s latest public pronouncements. He has declared many of his domestic political opponents to be “vermin.” His campaign has promised that his critics’ “sad, miserable existence” will be “crushed.” And he has specifically told his followers, “I am your vengeance.”

Some version of the Insurrection Act is probably necessary. After all, from the Whiskey Rebellion to the Civil War to Trump’s own insurrection on Jan. 6, we have seen direct, violent challenges to federal authority. But any such authorization should be carefully circumscribed and subject to oversight. The authority granted by the act, however, is remarkably broad, and oversight is virtually nonexistent.

The Insurrection Act contains a number of provisions, and not all are equally bad. For example, the first provision, 10 U.S.C. Section 251, provides that the president may deploy troops “upon the request of [a state’s] legislature or of its governor if the legislature cannot be convened” in the event of an insurrection. There is no unilateral presidential authority under this provision; the president’s power is activated only by a state request.

But the act gets worse, much worse. The next section takes the gloves off, giving the president the ability to call out the National Guard or the regular army “whenever the president considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings.” Note the key language: “whenever the president considers.” That means deployment is up to him and to him alone.

The section after that does much same thing, again granting the president the power to “take such measures he considers necessary” to suppress “any insurrection, domestic violence, unlawful combination or conspiracy.” This broad grant of power makes the Insurrection Act far more immediately dangerous than many other threatened Trump actions, such as prosecuting political opponents and transforming the federal work force. Judicial review can blunt many of Trump’s worst initiatives, but there’s no such obvious check on the use of his power under the act.

You might wonder why the Insurrection Act hasn’t presented much of a problem before now. It’s been used rarely, and when it has been used, it’s been used for legitimate purposes. For example, it was used repeatedly to suppress racist violence in the South during the Reconstruction era and the civil rights movement. Most recently, George H.W. Bush invoked it in 1992 — at the request of the governor of California — to assist in quelling the extreme violence of the Rodney King riots in Los Angeles.

That historical restraint has been dependent on a factor that is utterly absent from Trump: a basic commitment to the Constitution and democracy. Previous presidents, for all their many flaws, still largely upheld and respected the rule of law. Even in their most corrupt moments, there were lines they wouldn’t cross. Trump not only has no such lines but also has made his vengeful intentions abundantly clear.

There is still time, however, to take this terrible tool out of Trump’s potential hands. The Insurrection Act has not always been so broad. In its earliest versions, the president’s power was much more carefully constrained. But Congress expanded the president’s power after the Civil War, in part to deal with racist insurgencies in the defeated Confederacy.

It’s time to rein in the excesses of the act. In 2022, Elizabeth Goitein and Joseph Nunn from the Brennan Center for Justice submitted a comprehensive reform proposal to the House Select Committee to Investigate the January 6th Attack on the United States Capitol. The proposal would narrow and carefully define the circumstances in which the president can deploy troops, provide for a congressional review and approval process and enable judicial review of claims that the legal criteria for deployment were not met. It’s a proposal worth adopting.

I’m not naïve. I recognize that it will be difficult if not impossible for any reform bill to pass Congress. Mike Johnson, the speaker of the Republican-led House of Representatives, was a central player in Trump’s effort to overturn the 2020 election. Many of Trump’s congressional allies share his thirst for vengeance. But it’s past time to highlight this problem in the federal code. It’s past time to strip unilateral authority from the president.

Dec. 3

 

Future Supreme Court Associate Justice Sandra Day O'Connor, right, during her years as a state legislator and campaigner in Arizona (Associated Press photo).

Future Supreme Court Justice Sandra Day O'Connor, right, during her years as a state legislator and campaigner in Arizona (Associated Press photo).

ny times logoNew York Times, Opinion: Sandra Day O’Connor Never Stopped Being a Politician, Jeffrey Toobin (former federal prosecutor andauthor of “The Nine: Inside the Secret World of the Supreme Court”), Dec. 3, 2023 (print ed.). Sandra Day O’Connor, who died on Friday, is forever linked to the word “first” — the first woman to serve on the Supreme Court. But especially when thinking about today’s court, the word that may describe her best is “last” — the last former politician to be a justice.

Justice O’Connor spent a little over five years as a state senator in Arizona, eventually serving as the leader of the Republican majority, and her tenure in the capitol in Phoenix is the key to understanding both her own jurisprudence and what’s missing from the Supreme Court today.

Justice O’Connor loved being a politician and, in a way, never stopped being one. Of course, she didn’t have to face the voters as a justice, but she was acutely aware of the need for the court to remain in the good graces of the public. Her judicial philosophy — which was less an overarching ideology than a case-by-case inclination toward moderation — never found much favor among law professors; she had no overarching theory of jurisprudence, like the contemporary fad for originalism. (Conducting séances with the likes of James Madison for guidance on cases was never for her.) She was a practical problem solver, and she was guided by a keen sense of the political center, where she thought the court always belonged.

ny times logoNew York Times, Opinion: I Clerked for Justice O’Connor. She Was My Hero, but I Worry About Her Legacy, Oona A. Hathaway (Ms. Hathaway, a oona hathawayprofessor of law and political science at Yale University, clerked for Justice Sandra Day O’Connor from 1998 to ’99), Dec. 4, 2023 (print ed.). When I learned that Justice Sandra Day O’Connor had died, I felt not just the loss of a world historical figure but also the loss of someone who formed a part of my identity.

As a young woman, I was in awe of Justice O’Connor. Her presence on the Supreme Court offered an answer to any doubts I had that I belonged in the law. As a young lawyer, I was lucky enough to work for a year as her law clerk.

While clerking for her, I came to understand and appreciate not only her place in history but also her vision of the law. She refused opportunities to issue sweeping opinions that would substitute her ideals for the democratic process. This made it all the more tragic that toward the end of her career, she joined in a decision — Bush v. Gore — that represented a rejection of her cautious approach in favor of a starkly political one.

For me, she stands as a shining example of how women — everyone, really — can approach life and work. I witnessed her warmth, humor and humanity while experiencing the gift of learning and seeing the law through her eyes. Those personal and legal impressions have left an enduring mark on me as a person and as a lawyer.

At the time Justice O’Connor became a lawyer, women in that role were rare. As has now become familiar lore, after she graduated near the top of her class from Stanford Law School in 1952, she was unable to find work as a lawyer. As a justice, she made sure that opportunities denied to her were available to others. Shortly after I graduated from law school, I joined two other women and one man in her chambers, making a rare majority-woman chamber when just over a third of the clerks for Supreme Court justices were women.

I always found it remarkable that I never heard Justice O’Connor talk with any bitterness of the barriers she faced pursuing her career. Instead, she worked hard and without drama to overcome them. Remarkably, that experience did not harden her.

She had a wicked sense of humor. The door to our clerks’ office held a photocopied image of her hand with the words “For a pat on the back, lean here.” Her face transformed in an almost girlish way when she laughed, which she did often.

When she met with the clerks on Saturday to discuss upcoming cases, she brought us a home-cooked lunch — often something inspired by her Western roots. (One memorable example was tortillas and a cheesy chicken filling, to make a kind of cross between a burrito and a chicken quesadilla. It was a bit of a mess to eat but delicious.) She insisted that we get out of the courthouse and walk with her to see the cherry blossoms, and she took us to one of her favorite museums; once we visited the National Arboretum and lingered at the bonsai exhibit. She believed firmly in the benefits of exercise, and she invited us to join daily aerobics sessions with a group of her friends early in the morning in the basketball court above the Supreme Court chamber, which she delighted in calling the “highest court in the land.”

ny times logoNew York Times, Supreme Court Will Hear Arguments in the Purdue Pharma Bankruptcy Case, Abbie VanSickle and Jan Hoffman, Dec. 4, 2023. The current deal would shield members of the wealthy Sackler family from lawsuits in exchange for billions for those harmed by the opioid epidemic.

The settlement involving Purdue, the maker of the prescription painkiller OxyContin, touches on one of the country’s largest public health crises. In taking up the case, the court temporarily paused the deal until it issues a ruling. Experts say any decision may also have important consequences for other cases that use the bankruptcy system to settle claims of mass injuries.

Dec. 2

washington post logoWashington Post, Sandra Day O’Connor, pathbreaking woman on Supreme Court, dies at 93, Fred Barbash, Dec. 2, 2023 (print ed.). As the first woman to serve on the Supreme Court, O’Connor wielded the key vote in dozens of cases. The Reagan appointee advanced no overarching agenda or broad legal philosophy, which freed her to consider each case on its own and made her the pivotal justice of her era.

sandra day oconnor oSandra Day O’Connor, right, the first female U.S. Supreme Court justice, whose independence on a court that was often ideologically divided made her the pivotal vote in numerous closely contested cases and one of the most powerful women of her era, died Dec. 1 in Phoenix. She was 93.

The cause was complications from advanced dementia — probably Alzheimer’s disease — and a respiratory illness, according to an announcement by the court. Justice O’Connor had said in 2018 that she had dementia and was exiting public life.

In her nearly quarter-century as a justice, from her swearing-in on Sept. 25, 1981, after being appointed by President Ronald Reagan, to her retirement on Jan. 31, 2006, to care for her husband, who had Alzheimer’s, Justice O’Connor tried to avoid what she called “giant steps you’ll live to regret.”

She rejected the idea of eliminating the right to abortion, for example, in part because “an entire generation has come of age” relying on it. She co-wrote the principal opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), setting a new standard for judging abortion cases but reaffirming the core holding of Roe v. Wade, which legalized abortion nationwide in 1973.

Justice O’Connor’s successor, Samuel A. Alito Jr., would in 2022 excoriate her decision for having “enflamed debate and deepened division,” in his majority opinion overturning abortion rights.

Reagan appointed Justice O’Connor as a conservative, but she became known in her era as a centrist.

Dec. 1

 

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

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

Politico, Senate Judiciary issues subpoenas to Leo, Crow in SCOTUS ethics probe as Republicans boycott, Katherine Tully-McManus, Dec. 1, 2023 (print ed.). No action was taken on nearly 200 amendments from Republicans.

politico CustomSenate Judiciary Republicans walked out of the committee to boycott a vote authorizing subpoenas for information from conservative activists and donors about their ties to conservative Supreme Court justices.

senate democrats logoThe panel voted 11-0 to authorize subpoenas for conservative judicial activist Leonard Leo and Texas billionaire Harlan Crow on their close personal and financial relationships with some justices, with no Republicans left in the room besides ranking member Lindsey Graham (R-S.C.). Graham exited once the vote was underway and did not vote.

“They think we're gonna roll over and come back sometime later and try all over again and face the same limitations. You know, there reaches a point where there has to be a vote. They walked out on it. That's their decision,” Durbin said.

The subpoenas are part of an ongoing investigation into ethics at the Supreme Court and how undisclosed gifts and personal ties between major activists, donors and justices may have granted access to individuals and groups with business before the court.

 

November

Nov. 30

 

american flag upside down distress

washington post logoWashington Post, Opinion: A Trump dictatorship is increasingly inevitable. We should stop pretending, Robert Kagan, right, Nov. 30, 2023. There is a clear path robert kagan looking leftto dictatorship in the United States, and it is getting shorter every day. So why is everyone behaving like normal?

Let’s stop the wishful thinking and face the stark reality: There is a clear path to dictatorship in the United States, and it is getting shorter every day. In 13 weeks, Donald Trump will have locked up the Republican nomination. In the RealClearPolitics poll average (for the period from Nov. 9 to 20), Trump leads his nearest competitor by 47 points and leads the rest of the field combined by 27 points.

The idea that he is unelectable in the general election is nonsense — he is tied or ahead of President Biden in all the latest polls — stripping other Republican challengers of their own stated reasons for existence. The fact that many Americans might prefer other candidates, much ballyhooed by such political sages as Karl Rove, will soon become irrelevant when millions of Republican voters turn out to choose the person whom no one allegedly wants.

President Donald Trump officialFor many months now, we have been living in a world of self-delusion, rich with imagined possibilities. Maybe it will be Ron DeSantis, or maybe Nikki Haley. Maybe the myriad indictments of Trump will doom him with Republican suburbanites. Such hopeful speculation has allowed us to drift along passively, conducting business as usual, taking no dramatic action to change course, in the hope and expectation that something will happen. Like people on a riverboat, we have long known there is a waterfall ahead but assume we will somehow find our way to shore before we go over the edge. But now the actions required to get us to shore are looking harder and harder, if not downright impossible.

djt maga hatThe magical-thinking phase is ending. Barring some miracle, Trump will soon be the presumptive Republican nominee for president. When that happens, there will be a swift and dramatic shift in the political power dynamic, in his favor. Until now, Republicans and conservatives have enjoyed relative freedom to express anti-Trump sentiments, to speak openly and positively about alternative candidates, to vent criticisms of Trump’s behavior past and present. Donors who find Trump distasteful have been free to spread their money around to help his competitors. Establishment Republicans have made no secret of their hope that Trump will be convicted and thus removed from the equation without their having to take a stand against him.

Robert Kagan, a Post Opinions contributing editor, is the author of “Rebellion: How Antiliberalism Is Tearing America Apart — Again,” which will be published by Knopf in May.

Nov. 28

 

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

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

ny times logoNew York Times, Justices Search for Middle Ground on Mandatory Sentences for Gun Crimes, Adam Liptak, Nov. 28, 2023 (print ed.). A federal law imposes a mandatory 15-year sentence for possessing a gun after committing three serious drug offenses. But which offenses count? The Supreme Court heard arguments on Monday over which drug offenses trigger mandatory 15-year sentences under the Armed Career Criminal Act, which is a kind of federal three-strikes law.

The justices had three choices. By the end of the arguments, most of them seemed to have settled on a middle ground.

The law imposes the mandatory sentences on people convicted of unlawfully possessing firearms if they had already committed three violent felonies or serious drug offenses. The question for the justices was how to determine which drug offenses count under the law, which refers to a schedule of controlled substances overseen by the attorney general.

That schedule is revised from time to time, giving rise to the puzzle in the case.

Depending on which version of the schedule applies, a state drug conviction may or may not count as a strike under the federal gun law. Lawyers in the two consolidated cases on Monday gave the justices three options for deciding which schedule applied: the one in force when the defendant committed the state drug offense, the one in place when the defendant committed the federal gun crime or the one that applied when the defendant was sentenced for the federal gun crime.

A federal appeals court ruled that the middle choice — the schedule in place when he committed the federal gun crime — was the one that counted, affirming the 15-year mandatory sentence.

ny times logoNew York Times, The Supreme Court ruled that Arizona lawmakers must testify about state voting laws requiring proof of citizenship, Adam Liptak, Nov. 28, 2023 (print ed.). Two Republican lawmakers had argued that they could not be questioned about their motives for supporting the laws, which require proof of citizenship to vote in federal elections.

The Supreme Court ruled on Monday that two Arizona lawmakers must testify about their reasons for supporting state laws requiring proof of citizenship for voting in federal elections.

The court’s brief order gave no reasons, which is typical when the justices act on emergency applications. No dissents were noted.

The Justice Department, the Democratic National Committee, civil rights groups and others had challenged the state laws, saying they violated federal laws and had been enacted with a discriminatory purpose.

Nov. 22

 

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

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

ny times logoNew York Times, The Quiet Blockbuster at the Supreme Court That Could Impact All Americans, Kate Shaw, Nov. 22, 2023. Some Supreme Court terms are characterized by a single blockbuster case. This term largely revolves around a single blockbuster question: Will our government retain the capacity to address the most pressing issues of our time?

That’s what’s at stake in a group of cases involving the power, capacity and in some instances the very existence of federal agencies, the entities responsible for carrying out so much of the work of government.

“Administrative law” may sound dry and dusty. Justice Antonin Scalia once advised an audience to “steel yourselves for a pretty dull lecture” on that topic. But the administrative power cases pending before the court this term involve issues that touch the lives of every American.

They involve the government’s ability to study and approve the safety and efficacy of the drugs we take; its power to protect consumers, enforce the securities laws and safeguard the nation’s waters; and ultimately to respond in innovative ways to the climate emergency. The outcome in these cases may even affect more obvious hot-button issues like guns and abortion.

It’s been clear for some time that several conservative justices harbor deep skepticism about the administrative state. That’s perhaps no surprise: The three senior conservatives on this court all cut their teeth as young lawyers in the anti-regulation Reagan administration, and the court’s newer conservatives were appointed by Donald Trump, whose adviser Steve Bannon proudly announced that a goal of that administration was the “deconstruction of the administrative state.”

Under the court’s current conservative supermajority, the project of dismantling the administrative state is already well underway. This has largely happened through the court’s use of what it terms the major questions doctrine, a novel principle the court has wielded to prevent agencies from taking actions of significant political or economic importance if they cannot point to explicit authorization from Congress.

Using this doctrine, last year the court kneecapped the Environmental Protection Agency by limiting its ability to enforce the Clean Air Act in West Virginia v. E.P.A. It further curtailed agency power this year in Biden v. Nebraska, when it struck down an initiative by the administration’s Department of Education that would have canceled significant quantities of student debt.

Those decisions followed early-pandemic cases in which the court struck down agency efforts to respond to the public health emergency (though the court did not use the term “major questions doctrine” in a majority opinion until 2022). It refused to allow the Centers for Disease Control and Prevention to temporarily stop certain evictions and barred the Occupational Safety and Health Administration from imposing a test-or-vax mandate on large employers.

Perhaps the most important case this term is Loper Bright Enterprises v. Raimondo, scheduled for oral arguments in early 2024, in which the plaintiffs are asking the court to overrule the best-known case in administrative law, Chevron v. Natural Resources Defense Council. In Chevron, the court announced a rule that directed federal courts to defer to reasonable agency interpretations of statutes they administer. That is, if a statute is silent or ambiguous on a particular question, courts aren’t supposed to write on a blank slate about what the statute means — if an expert agency has already provided an answer to the question, and it’s a reasonable one, the court is supposed to defer to that interpretation.

In the 1984 Chevron case itself, the court deferred to a Reagan-era E.P.A. rule challenged by environmentalists, and the case once counted conservative stalwarts like Justice Scalia and Justice Clarence Thomas among its defenders. (In his “dull” lecture, Justice Scalia explained that the rule of Chevron “accurately reflects the reality of government” and “adequately serves its needs.”)

But Chevron has become a bête noire in conservative circles. Justice Neil Gorsuch largely rose to national prominence by writing anti-Chevron screeds when he was a lower-court judge, in one describing Chevron as “hard to square with the Constitution of the founders’ design,” and as giving “prodigious new powers to an already titanic administrative state.” The Supreme Court has increasingly ignored the decision, even in cases in which it seems clearly relevant.

The specific issue in Loper Bright involves the meaning of a statute that authorizes a federal agency, the National Marine Fisheries Service, to require commercial fishing vessels to carry observers on board ships — part of an effort to respond to the problem of overfishing. The question is who bears the cost of these onboard observers. The statute doesn’t say, and the agency has concluded that under some circumstances, the individuals on whose boats the observers are carried have to foot the bill. The lower court here deferred to that agency interpretation, invoking Chevron.

The plaintiffs in this case, four self-described family-owned herring fishing companies who say that the bills for onboard observers can run as high as 20 percent of their annual returns, are unquestionably deserving of sympathy. But at issue in the case isn’t the wisdom of this particular regulation. It’s the power of government to make decisions with an eye to the collective good.

In its brief in the case, the federal government argues that overruling Chevron would be a “convulsive shock to the legal system.” It explains that the federal government, as well as regulated parties and the public, “have arranged their affairs for decades with Chevron as the backdrop against which Congress legislates, agencies issue rules and orders, and courts resolve disputes.”

But with this court’s demonstrated eagerness to upend settled law and practice, it’s not clear that these concerns will get much traction. Many observers expect that when it decides the case, the court will deal the Chevron precedent a death blow.

Doing so would be a serious mistake. Statutes are never going to cover every conceivable scenario or application. A statute might give an agency the power to require employers to take steps that are reasonably necessary or appropriate to provide safe or healthful employment. It might empower an agency to decide who is an employee for purposes of various provisions of labor law. Or it could require retail stores to provide information on particular food items, then empower the F.D.A. to determine whether stores are in substantial compliance with that requirement.

Whatever the topic, there will always be gaps and ambiguities; the only question is who will fill those gaps and interpret provisions that contain ambiguities — expert agencies or courts. Agencies aren’t by any means perfect. But Congress has long drafted statutes with an understanding that agencies will be the first-line interpreters, and as between agencies and courts, it’s clear that agencies, which are more expert and more politically accountable, should have the advantage.

If the court does overrule Chevron, it matters a great deal what, if anything, the court offers in its place. If the court preserves the notion that agencies have a key role to play in interpreting laws and that under most circumstances, agency interpretations should carry significant weight with courts, it might not matter much that the court technically disavows the Chevron test. But abandoning the notion of deference to agencies in the interpretation of statutes would result in an enormous expansion of the power of courts — in particular, the power of a Supreme Court that has shown itself to be singularly hostile to agency action.

Other cases this term could have serious implications for particular agencies and for government more broadly. In S.E.C. v. Jarkesy, the court is considering the argument that aspects of the way the Securities and Exchange Commission enforces the securities laws are unconstitutional for three separate reasons — that the agency brings before administrative law judges actions that should actually be resolved by juries; that administrative law judges have too much protection from presidential control; and that a statute that gives the agency much of its authority violates what’s called the nondelegation doctrine.

That idea is closely related to the major questions doctrine but goes even further, not only requiring agencies to identify explicit statutory authorization for major actions but also, in many instances, finding that agencies cannot take major actions at all. If embraced in its entirety, the nondelegation doctrine could spell the end of agency power as we know it, turning the clock back to before the New Deal.

In another case, this one argued in early October, the court is considering the truly radical argument that the funding structure of the Consumer Financial Protection Bureau is unconstitutional. In 2020, a 5-to-4 court ruled part of the structure of the C.F.P.B. unconstitutional, but the agency was able to continue functioning. In this challenge, the federal government argues that the challengers’ position, if accepted, would not only mark the end of the C.F.P.B. but also “invalidate much of the federal budget.” It might also throw into question the constitutionality of other federal agencies, including the Federal Reserve.

In yet another case about agency power, either this term or next, the court is likely to take up a challenge to the Food and Drug Administration’s approval and subsequent regulation of mifepristone, one of the drugs used in medication abortion, the most common method of abortion in the country. The Supreme Court has put on hold lower court rulings that invalidated parts of the F.D.A.’s approval, but that’s no guarantee of how the court would ultimately rule in the case. A decision even partly siding with the lower courts would not only have catastrophic consequences for access to abortion; it would also, according to a number of drug manufacturers, result in a dramatic shift in drug development and approval processes — which would have implications, the manufacturers say, for their ability to invest in and develop new medicines. It would furthermore likely destabilize the F.D.A.’s approval process, which has long been seen as the global gold standard of drug safety.

In some of these cases, the challengers claim that they are the ones on the side of democracy — that by seeking to gut the power of agencies, they are merely trying to return power to Congress, the branch of government that is the most democratically responsive and accountable. But embracing these arguments would not result in the court returning power to Congress but claiming enormous and novel powers for itself.

Because these moves have been made gradually, often in cases that fly under the radar, it’s easy to miss just how quickly and dramatically the Supreme Court has moved the law in this area — and it’s far from finished. To be clear, the court may turn away some of the challenges discussed above; a mortal wound to the administrative state may not come this term at all. Chief Justice John Roberts is a shrewd political actor, and he very likely appreciates that the political consequences of ending access to mifepristone or adopting a theory that could doom the Fed could damage

But a full embrace of the conservative majority’s crabbed vision of the role and power of government would have seismic consequences for all of us.

ny times logoNew York Times, The Supreme Court’s Search for a More Attractive Gun Rights Case, Adam Liptak, Nov. 21, 2023 (print ed.). The next big Second Amendment case, after one on domestic violence, could be about whether the government can disarm a man who lied to get food stamps.

When the Supreme Court heard arguments this month on whether the Second Amendment allows the government to disarm domestic abusers, Justice Amy Coney Barrett made a cryptic reference that puzzled many in the courtroom. She asked, according to the court’s official transcript, about “the range issue.”

Sentencing range? Firing range? She was, it turned out, referring to a person, Bryan Range, who has challenged a federal law prohibiting people who have been convicted of felonies from owning guns.

Mr. Range is a far more sympathetic figure than the defendant in the domestic violence case, Zackey Rahimi. According to court records, Mr. Rahimi threatened women with firearms and was involved in five shootings in a two-month stretch.

Justice Barrett and several of her colleagues seemed to think that Mr. Rahimi was a menace, and they appeared inclined to reject his Second Amendment challenge to a federal law that prohibits people subject to domestic violence restraining orders from having guns.

Mr. Range, by contrast, pleaded guilty to a nonviolent crime decades ago while he was struggling to feed his three young children. He admitted in state court in Pennsylvania in 1995 that he had made a false statement to get food stamps.

That was a misdemeanor, but it was subject to a maximum sentence of five years, which was enough to make it count as the equivalent of a felony under the federal gun law.

 

Lee and Marina Oswald (far right) and their child with Mr. and Mrs. Alexander Romanovich Zieger and Eleanor Zieger. Warren Commission Exhibit No. 2628. Photo credit: National ArchivesLee and Marina Oswald (far right) and their child with Mr. and Mrs. Alexander Romanovich Zieger and Eleanor Zieger. Warren Commission Exhibit No. 2628. Photo credit: National Archives

WhoWhatWhy Podcast, Conflicting Memories of Two ‘Friends’ of Lee Oswald, Jeff Schechtman, Exclusive interviews with two who knew Lee Oswald, offering unique insights into the enigmatic figure linked to JFK’s assassination.

whowhatwhy logoAs part of the WhoWhatWhy special series commemorating the 60th anniversary of President John F. Kennedy’s assassination, we bring you exclusive interviews with two individuals closely connected to Lee Oswald. Offering contrasting perspectives, these interviews shed light on Oswald’s complex character and his place in the tragedy of Kennedy’s death.

First, we hear from professor Paul Gregory, a research fellow at Stanford’s Hoover Institution and an expert in Soviet and Russian economics. Gregory’s unique connection to Oswald began in Texas in 1962, following Oswald’s return from the Soviet Union with his Russian wife, Marina. Gregory’s insights are further detailed in his book The Oswalds: An Untold Account of Marina and Lee.

We also speak with Ernst Titovets, a Minsk-based medical doctor and neurosurgery professor, who said he befriended Oswald during his Soviet sojourn. Titovets’s memoir, Oswald: Russian Episode, opens a rare window into Oswald’s life in the USSR and provides a critical analysis of the Kennedy assassination investigations, weighing official narratives against his personal experiences.

These are intimate accounts, providing sharply contrary insights into the enigma of Lee Oswald through the eyes of some of those who interacted with him in a critical period — the several years before he allegedly shot Kennedy.

  • Interview with Paul Gregory:
  • Interview with Ernst Titovets:

About the JFK Assassination Series

This series was inspired by an ongoing project of WhoWhatWhy Founder and Editor-in-Chief Russ Baker to produce a definitive, meticulous, book-length investigation of Kennedy’s death. Click here for the introduction to the series. To read the other articles in this series, go here.

If you have information to bring to our attention about any aspect of the JFK assassination — or are with the media and interested in covering or reproducing our work or inviting Mr. Baker to appear on a program — please click here. If you would like to be on a mailing list to receive news of the book, click here. To sign up for WhoWhatWhy newsletters, click here.

Nov. 15

ny times logoNew York Times, Analysis: Supreme Court’s New Ethics Code Is Toothless, Experts Say, Adam Liptak, Nov. 15, 2023 (print ed.). The new code of conduct includes no enforcement mechanism and lets individual justices decide ethics questions for themselves.

The new Supreme Court ethics code released on Monday looks good on paper, experts in legal ethics said. But only on paper.

Its lack of an enforcement mechanism means that it will operate on the honor system, with individual justices deciding for themselves whether their conduct complies with the code. That makes it a parchment promise, some experts said, without transparent procedures for assessing whether it has been violated or consequences when it has.

“The primary problem is how to give these rules teeth, especially in light of the fact that there have been repeated violations of these very rules,” said Amanda Frost, a law professor at the University of Virginia.

Among those violations, she said, citing news reports, were participation in fund-raising events and the failure to disclose gifts by Justice Clarence Thomas and the use of Supreme Court staff members to help sell books by Justice Sonia Sotomayor.

At the heart of much of the debate over the new ethics code is which conflicts require recusal and whether justices should decide those questions for themselves. Justice Thomas, for instance, took part in cases on the 2020 election and its aftermath, even though Virginia Thomas, his wife, had participated in efforts to overturn the results.

The new code does not say what can be done to address situations like that, said Renee Knake Jefferson, a law professor at the University of Houston.

“There is no official process for an individual to file a complaint,” she said. “There is not really even any clear way that we can see how the justices will enforce it among themselves.”

Nov. 10

 

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

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

 

leonard leo ap carolyn kaster

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

washington post logoWashington Post, A guide to the friends and patrons of Clarence and Ginni Thomas, Shawn Boburg, Nov. 10, 2023 (print ed.). These are the associates of Supreme Court Justice Clarence Thomas and his wife, Ginni, who have given gifts, made payments or otherwise supported the couple based on recent reporting from various news outlets.

Justice Clarence Thomas and his wife, Virginia “Ginni” Thomas, have long been surrounded by a tight network of friends and patrons, most of them staunch conservatives. Over the past six months, reporting primarily by ProPublica but also by The Washington Post, the New York Times and other outlets has revealed the extent to which that network has provided the Thomases with gifts, favors and employment — many of which the justice never publicly disclosed.

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.Clarence Thomas McConnell Center flickr CC BY NC ND 2.0

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.

The revelations about the Thomases’s interactions with billionaires have fueled calls for the Supreme Court justices to be bound by a code of ethics. Though Thomas has amended some details in his financial disclosures, saying errors and omissions were the result of misunderstandings, he has said he was not required to report many of the personal gifts he received from wealthy friends. A lawyer for Thomas has said “no one influences Justice Clarence Thomas’s jurisprudence.”

 

supreme court 2022 o

ny times logoNew York Times, Supreme Court’s Devotion to Gun Rights Faces a Challenging Test, Adam Liptak, Nov. 7, 2023 (print ed.). The justices will hear arguments on Tuesday on whether the government can disarm people subject to restraining orders for domestic abuse.

The big gun rights case the Supreme Court is set to hear on Tuesday presents the justices with a tricky problem.

They must start to clear up the confusion they created last year in a landmark decision that revolutionized Second Amendment law by saying that long-ago historical practices are all that matter in assessing challenges to gun laws. That standard has left lower courts in turmoil as they struggle to hunt down references to obscure or since-forgotten regulations.

Judging the constitutionality of gun laws has turned into a “game of historical ‘Where’s Waldo?’” Judge Holly A. Brady of the Federal District Court in Fort Wayne, Ind., wrote in December.

But this week’s case is an imperfect vehicle for achieving greater clarity about the reach of the Second Amendment.

It concerns a drug dealer from Texas with a history of armed violence who was convicted of violating a federal law aimed at preventing domestic abuse. A conservative appeals court with a reputation for extremism struck down that law, saying it had been unable to find a suitable historical analogue.

The case is, in other words, not an attractive one for groups seeking to expand Second Amendment rights. And the justices will consider it as the nation is still reeling from the deadliest mass shooting of the year, one that left 18 people dead in Lewiston, Maine.

Ever since last year’s gun rights decision, New York State Rifle & Pistol Association v. Bruen, judges have complained about the nature and volume of the work it entails, involving historical inquiries in which they have no expertise. Unable to settle on a consistent methodology, they have issued diverging decisions on not only the domestic violence law but also on ones disarming felons, 18- to 20-year-olds and users of illegal drugs.

By announcing “an inconsistent and amorphous standard, the Supreme Court has created mountains of work for district courts that must now deal with Bruen-related arguments in nearly every criminal case in which a firearm is found,” wrote Judge Brady, who was appointed by President Donald J. Trump.

ny times logoNew York Times, A Texas man at the center of the Supreme Court case says he no longer wants guns, Abbie VanSickle, Nov. 7, 2023 (print ed.).  Zackey Rahimi has vowed “to stay away from all firearms and weapons” in a case that could expand gun rights protections, but advocates say he is not an ideal poster boy for the Second Amendment.

In a handwritten letter from jail, the man at the center of a major Supreme Court gun rights case to be heard on Tuesday apologized for going down “a wrong path” and wrote that he would no longer carry a gun.

“I will make sure for sure this time that when I finish my time being incarcerated to stay the faithful, righteous person I am this day,” the man, Zackey Rahimi, wrote. He added that he wanted “to stay away from all firearms and weapons, and to never be away from my family again.”

Despite Mr. Rahimi’s vows in the July 25 letter addressed to a local judge and prosecutor, gun rights advocates acknowledge that he is not an ideal poster boy for the Second Amendment.

“It’s a fundamental strategic goal to present cases in the most favorable light possible, and that would include having a sympathetic and relatable person,” said Clark Neily, the senior vice president for legal studies at the Cato Institute, which has advocated gun rights. “I don’t know anyone who would see Zackey Rahimi as either of these things.”

Mr. Rahimi, 23, of Texas, faces not only multiple gun-related charges, but prosecutors also say that after a judge barred Mr. Rahimi from carrying weapons under a domestic violence protective order, he participated in a string of five shootings over just two months.

A panel of judges on the U.S. Court of Appeals for the Fifth Circuit wrote that he was “hardly a model citizen,” even as they sided with him.

ny times logoNew York Times, Opinion: Will the Supreme Court Toss Out a Gun Law Meant to Protect Women? Linda Greenhouse (shown at right on the cover linda greenhouse cover just a journalistof her memoir), Nov. 7, 2023 (print ed.).  Ever since the Supreme Court agreed in June to hear the government’s appeal of a particularly noxious Second Amendment ruling, I had been curious to see which “friends of the court” might emerge on the gun-rights side.

Supporting the lower court’s judgment figured to be a delicate task. The United States Court of Appeals for the Fifth Circuit, interpreting the Supreme Court’s sweeping and destabilizing 2022 Bruen gun rights decision, declared unconstitutional a federal law that prohibits a person subject to a court-issued restraining order for domestic violence from owning a gun. There was no analogous prohibition when the Second Amendment was adopted, the Fifth Circuit panel declared, and so under the Bruen decision’s history-is-all-that-counts reasoning, there could be none today.

Granted, the current Supreme Court majority has already turned the Second Amendment into a runaway train, but this new case, United States v. Rahimi, to be argued on Tuesday, may tell us whether the train has jumped the tracks entirely.

A state court in Texas granted Zackey Rahimi’s ex-girlfriend, the mother of his child, a two-year protective order prohibiting him from possessing a firearm after he assaulted her in a parking lot in 2019 and threatened to kill her if she told anyone. Under the 1994 federal law now at issue, Section 922(g)(8), it was a crime for Mr. Rahimi to possess a gun, which the protective order warned him about. But in December 2020 and January 2021, he went on a shooting spree, leading the police to get a warrant to search his home. They found a pistol and a rifle — and a copy of the protective order.

Mr. Rahimi pleaded guilty and received a more than six-year prison sentence for the federal crime of possessing a gun while under a restraining order for domestic violence. He challenged the law’s constitutionality under the Second Amendment and lost. But then the Supreme Court decided the Bruen case, holding that regardless of the rationale for a particular firearms limitation, none can stand unless the government can point to a “relevantly similar” regulation in existence in the late 18th century. The Fifth Circuit then withdrew its initial opinion and, finding Section 922(g)(8) now unconstitutional, vacated Mr. Rahimi’s conviction.

Anticipating the Supreme Court showdown, I tried to put myself in the place of a Second Amendment enthusiast but found it hard to imagine a less appealing context for making a pro-Second Amendment argument. Obviously, the federal public defender who won Mr. Rahimi’s case would defend the Fifth Circuit’s judgment; that’s his job. But was there anyone else who would urge the justices to rule that a law enacted with strong bipartisan support almost 30 years ago with the goal of protecting women from lethal violence by their intimate partners could no longer be enforced?

The answer to my question was not what I expected. While Mr. Rahimi’s side of the case attracted 22 amicus curiae briefs, a modest but respectable number, something was missing.

The first was elected officials. There were none. The contrast with the Bruen case two terms ago was stark. Bruen was a challenge to New York’s strict gun-licensing law.

Nov. 6

 

supreme court 2022 o

ny times logoNew York Times, Supreme Court’s Devotion to Gun Rights Faces a Challenging Test, Adam Liptak, Nov. 6, 2023. The justices will hear arguments on Tuesday on whether the government can disarm people subject to restraining orders for domestic abuse.

The big gun rights case the Supreme Court is set to hear on Tuesday presents the justices with a tricky problem.

They must start to clear up the confusion they created last year in a landmark decision that revolutionized Second Amendment law by saying that long-ago historical practices are all that matter in assessing challenges to gun laws. That standard has left lower courts in turmoil as they struggle to hunt down references to obscure or since-forgotten regulations.

Judging the constitutionality of gun laws has turned into a “game of historical ‘Where’s Waldo?’” Judge Holly A. Brady of the Federal District Court in Fort Wayne, Ind., wrote in December.

But this week’s case is an imperfect vehicle for achieving greater clarity about the reach of the Second Amendment.

It concerns a drug dealer from Texas with a history of armed violence who was convicted of violating a federal law aimed at preventing domestic abuse. A conservative appeals court with a reputation for extremism struck down that law, saying it had been unable to find a suitable historical analogue.

The case is, in other words, not an attractive one for groups seeking to expand Second Amendment rights. And the justices will consider it as the nation is still reeling from the deadliest mass shooting of the year, one that left 18 people dead in Lewiston, Maine.

Ever since last year’s gun rights decision, New York State Rifle & Pistol Association v. Bruen, judges have complained about the nature and volume of the work it entails, involving historical inquiries in which they have no expertise. Unable to settle on a consistent methodology, they have issued diverging decisions on not only the domestic violence law but also on ones disarming felons, 18- to 20-year-olds and users of illegal drugs.

By announcing “an inconsistent and amorphous standard, the Supreme Court has created mountains of work for district courts that must now deal with Bruen-related arguments in nearly every criminal case in which a firearm is found,” wrote Judge Brady, who was appointed by President Donald J. Trump.

ny times logoNew York Times, A Texas man at the center of the Supreme Court case says he no longer wants guns, Abbie VanSickle, Nov. 6, 2023. Zackey Rahimi has vowed “to stay away from all firearms and weapons” in a case that could expand gun rights protections, but advocates say he is not an ideal poster boy for the Second Amendment.

In a handwritten letter from jail, the man at the center of a major Supreme Court gun rights case to be heard on Tuesday apologized for going down “a wrong path” and wrote that he would no longer carry a gun.

“I will make sure for sure this time that when I finish my time being incarcerated to stay the faithful, righteous person I am this day,” the man, Zackey Rahimi, wrote. He added that he wanted “to stay away from all firearms and weapons, and to never be away from my family again.”

Despite Mr. Rahimi’s vows in the July 25 letter addressed to a local judge and prosecutor, gun rights advocates acknowledge that he is not an ideal poster boy for the Second Amendment.

“It’s a fundamental strategic goal to present cases in the most favorable light possible, and that would include having a sympathetic and relatable person,” said Clark Neily, the senior vice president for legal studies at the Cato Institute, which has advocated gun rights. “I don’t know anyone who would see Zackey Rahimi as either of these things.”

Mr. Rahimi, 23, of Texas, faces not only multiple gun-related charges, but prosecutors also say that after a judge barred Mr. Rahimi from carrying weapons under a domestic violence protective order, he participated in a string of five shootings over just two months.

A panel of judges on the U.S. Court of Appeals for the Fifth Circuit wrote that he was “hardly a model citizen,” even as they sided with him.

ny times logoNew York Times, Opinion: Will the Supreme Court Toss Out a Gun Law Meant to Protect Women? Linda Greenhouse, Nov. 6, 2023. Ever since the Supreme Court agreed in June to hear the government’s appeal of a particularly noxious Second Amendment ruling, I had been curious to see which “friends of the court” might emerge on the gun-rights side.

Supporting the lower court’s judgment figured to be a delicate task. The United States Court of Appeals for the Fifth Circuit, interpreting the Supreme Court’s sweeping and destabilizing 2022 Bruen gun rights decision, declared unconstitutional a federal law that prohibits a person subject to a court-issued restraining order for domestic violence from owning a gun. There was no analogous prohibition when the Second Amendment was adopted, the Fifth Circuit panel declared, and so under the Bruen decision’s history-is-all-that-counts reasoning, there could be none today.

Granted, the current Supreme Court majority has already turned the Second Amendment into a runaway train, but this new case, United States v. Rahimi, to be argued on Tuesday, may tell us whether the train has jumped the tracks entirely.

A state court in Texas granted Zackey Rahimi’s ex-girlfriend, the mother of his child, a two-year protective order prohibiting him from possessing a firearm after he assaulted her in a parking lot in 2019 and threatened to kill her if she told anyone. Under the 1994 federal law now at issue, Section 922(g)(8), it was a crime for Mr. Rahimi to possess a gun, which the protective order warned him about. But in December 2020 and January 2021, he went on a shooting spree, leading the police to get a warrant to search his home. They found a pistol and a rifle — and a copy of the protective order.

Mr. Rahimi pleaded guilty and received a more than six-year prison sentence for the federal crime of possessing a gun while under a restraining order for domestic violence. He challenged the law’s constitutionality under the Second Amendment and lost. But then the Supreme Court decided the Bruen case, holding that regardless of the rationale for a particular firearms limitation, none can stand unless the government can point to a “relevantly similar” regulation in existence in the late 18th century. The Fifth Circuit then withdrew its initial opinion and, finding Section 922(g)(8) now unconstitutional, vacated Mr. Rahimi’s conviction.

Anticipating the Supreme Court showdown, I tried to put myself in the place of a Second Amendment enthusiast but found it hard to imagine a less appealing context for making a pro-Second Amendment argument. Obviously, the federal public defender who won Mr. Rahimi’s case would defend the Fifth Circuit’s judgment; that’s his job. But was there anyone else who would urge the justices to rule that a law enacted with strong bipartisan support almost 30 years ago with the goal of protecting women from lethal violence by their intimate partners could no longer be enforced?

The answer to my question was not what I expected. While Mr. Rahimi’s side of the case attracted 22 amicus curiae briefs, a modest but respectable number, something was missing.

The first was elected officials. There were none. The contrast with the Bruen case two terms ago was stark. Bruen was a challenge to New York’s strict gun-licensing law.

 

October

Oct. 31

washington post logoWashington Post, Democrats plan to subpoena wealthy benefactors of Supreme Court justices, Ann E. Marimow, Oct. 31, 2023 (print ed.). Senate Democrats announced plans Monday to vote to subpoena a pair of wealthy conservatives and a judicial activist who have underwritten or organized lavish travel for some Supreme Court justices, a move that adds to the pressure on the high court to strengthen its ethics policies.

senate democrats logoSenate Judiciary Committee leaders said they would vote as soon as Nov. 9 to authorize subpoenas for information from Texas billionaire Harlan Crow, a close friend and benefactor of Justice Clarence Thomas, and from Leonard Leo, the conservative judicial activist. Senate Democrats do not need the vote of any Republican on the committee to authorize the subpoenas. No separate vote by the full Senate is necessary.

Democratic lawmakers are seeking detailed information about the full extent of Crow’s gifts to Thomas. News reports about the justice’s failure over many years to report private jet travel, real estate deals and other gifts from Crow have prompted calls for the court to strengthen its ethics rules and for greater transparency about the justices’ potential conflicts and recusal decisions.

“By accepting these lavish, undisclosed gifts, the justices have enabled their wealthy benefactors and other individuals with business before the Court to gain private access to the justices while preventing public scrutiny of this conduct,” Judiciary Committee Chairman Richard J. Durbin (D-Ill.) and Sen. Sheldon Whitehouse (D-R.I.) said in the joint announcement. “It is imperative that we understand the full extent of how people with interests before the Court are able to use undisclosed gifts to gain private access to the justices.”

Oct. 27

washington post logoWashington Post, This conservative appeals court’s rulings are testing the Supreme Court, Robert Barnes and Ann E. Marimow, Oct. 27, 2023 (print ed.). The Supreme Court this term will review eight 5th Circuit decisions. It has sided with the Biden administration over the lower court twice in the past week.

The U.S. Court of Appeals for the 5th Circuit covers just three states: Texas, Louisiana and Mississippi. But it is having an outsize influence on the cases and controversies that reach the U.S. Supreme Court and testing the boundaries of the conservative legal movement’s ascendancy.
Keeping up with politics is easy with The 5-Minute Fix Newsletter, in your inbox weekdays.

With a dozen judges nominated by Republican presidents, and only four by Democrats, the court is the favored launchpad for right-leaning politicians and organizations seeking groundbreaking judicial decisions restricting abortion, limiting guns laws, thwarting the ambitions of the Biden administration and curtailing the power of “administrative state” federal regulatory agencies.

“A meth lab of conservative grievance,” said New York University law professor Melissa Murray, a liberal who helps anchor a podcast about the Supreme Court called “Strict Scrutiny.” A recent episode described the 5th Circuit as an “American Idol” for conservative judges hoping to be noticed for a spot someday on the high court.

That would be fine with many on the right. On Wednesday night, the conservative Heritage Foundation honored one of the 5th Circuit’s most provocative members, Judge James C. Ho, with its Defender of the Constitution award. Ho was introduced as a former law clerk to Justice Clarence Thomas who might someday become his colleague — a suggestion that drew applause from the auditorium filled with lawyers, law students and fellow judges.

 

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.Clarence Thomas McConnell Center flickr CC BY NC ND 2.0

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 logoWashington Post, Opinion: The case of Clarence Thomas’s motor home gets curiouser and curiouser, Ruth Marcus, right, Oct. 27, 2023 (print ed.). On ethics, the ruth marcusSupreme Court justice has lost the benefit of the doubt. by  Is Supreme Court Justice Clarence Thomas a tax cheat? His lawyer insists not. The available evidence suggests this is a fair question.

​ “The loan was never forgiven,” attorney Elliot Berke said in a statement about a $267,000 loan from Thomas’s friend Anthony Welters that enabled the justice and his wife to buy a luxury motor home. “Any suggestion to the contrary is false. The Thomases made all payments to Mr. Welters on a regular basis until the terms of the agreement were satisfied in full.”

​This is hard to square with the information laid out in a Senate Finance Committee report on the transaction — and difficult to credit in the absence of supporting information beyond Berke’s conclusory assertion.

Thomas — with his multiple failures to disclose his wife’s employment, his receipt of free private plane travel and tuition payments made on behalf of his grandnephew — has forfeited the benefit of the doubt. If Thomas, as Berke asserts, indeed “satisfied in full” the terms of his loan agreement, then let’s see “the agreement.” Let’s see the canceled checks.

​Three cheers here for congressional oversight and Senate Finance Committee Chairman Ron Wyden (D-Ore.). The work by the majority staff of that panel builds on an August New York Times article that outlined how the Thomases were able to purchase the motor coach with underwriting from Welters, a longtime friend from their days together as congressional aides. Welters’s help was critical because traditional lenders are reluctant to provide financing for high-end recreational vehicles.

Welters confirmed making the loan in 1999 but wouldn’t provide details about its terms (including the total dollar value or the interest rate charged) beyond asserting that “the loan was satisfied,” a fuzzy phrase that raised more questions than it answered.

The finance committee investigation filled in important blanks — and underscored the reasons for skepticism about the transaction and Thomas’s compliance with both tax law and financial disclosure rules.

Oct. 26

ny times logoNew York Times, Justice Thomas’s R.V. Loan Was Forgiven, Senate Inquiry Finds, Jo Becker, Oct. 26, 2023 (print ed.). The justice failed to repay much, perhaps all, of the $267,230 loan. His benefactor wiped the slate clean, with ethical and potential tax consequences.

The terms of the private loan were as generous as they were clear: With no money down, Justice Clarence Thomas could borrow more than a quarter of a million dollars from a wealthy friend to buy a 40-foot luxury motor coach, making annual interest-only payments for five years. Only then would the principal come due.

But despite the favorable nature of the 1999 loan and a lengthy extension to make good on his obligations, Justice Thomas failed to repay a “significant portion” — or perhaps any — of the $267,230 principal, according to a new report by Democratic members of the Senate Finance Committee. Nearly nine years later, after Justice Thomas had made an unclear number of the interest payments, the outstanding debt was forgiven, an outcome with ethical and potential tax consequences for the justice.

“This was, in short, a sweetheart deal” that made no logical sense from a business perspective, Michael Hamersley, a tax lawyer who has served as a congressional expert witness, told The New York Times.

The Senate inquiry was prompted by a Times investigation published in August that revealed that Justice Thomas bought his Prevost Marathon Le Mirage XL, a brand favored by touring rock bands and the super-wealthy, with financing from Anthony Welters, a longtime friend who made his fortune in the health care industry.

In a statement to The Times this summer, Mr. Welters said the loan had been “satisfied” in 2008. He declined to answer whether that meant Justice Thomas had paid off the loan in full; nor did he respond to other basic questions about the terms. But while a number of questions remain, he gave a much fuller account to the committee, which has the authority to issue subpoenas and compel testimony.

The documents he volunteered indicate that, at the very least, Justice Thomas appears to have flouted an ethics rule requiring that he include any “discharge of indebtedness” as income on required annual financial disclosure reports. In addition, the Internal Revenue Service treats debt forgiveness as income to the borrower.

Senator Ron Wyden, the Oregon Democrat who leads the Senate Finance Committee, called on Justice Thomas to “inform the committee exactly how much loan was forgiven and whether he properly reported the loan forgiveness on his tax return and paid all taxes owed.”

Justice Thomas did not respond immediately to questions sent to him through the Supreme Court’s spokeswoman.

In recent months, amid a series of reports of ethical lapses, the Supreme Court has faced intense public pressure to adopt stricter ethics rules, with several justices publicly endorsing such a move. Much of the controversy has centered on how wealthy benefactors have bestowed an array of undisclosed gifts on Justice Thomas and his wife, Virginia Thomas: buying and renovating the home where his mother lives, helping to pay for his great-nephew’s tuition and hosting the couple on lavish vacations that included travel aboard private jets and superyachts.

Ethical Issues Inside the Supreme Court

  • Ethics Code: Justice Amy Coney Barrett said that she favored an ethics code for the Supreme Court, joining the growing chorus of justices who have publicly backed adopting such rules.
  • Koch Network Events: Justice Clarence Thomas twice attended an annual donor summit organized by the conservative political network established by the billionaire industrialists Charles and David Koch.
  • Calls for an Ethics Code: In an interview at Notre Dame, Justice Elena Kagan said that the Supreme Court should adopt a code of ethics, saying that “it would be a good thing for the court to do that.”
  • Financial Disclosures: In his annual financial disclosure form, Justice Thomas responded in detail to reports that he had failed to disclose luxury trips and a real estate transaction with a Texas billionaire.

Oct. 25

 

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.Clarence Thomas McConnell Center flickr CC BY NC ND 2.0

 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.

ny times logoNew York Times, Justice Thomas’s R.V. Loan Was Forgiven, Senate Inquiry Finds, Jo Becker, Oct. 25, 2023. The justice failed to repay much, perhaps all, of the $267,230 loan. His benefactor wiped the slate clean, with ethical and potential tax consequences.

The terms of the private loan were as generous as they were clear: With no money down, Justice Clarence Thomas could borrow more than a quarter of a million dollars from a wealthy friend to buy a 40-foot luxury motor coach, making annual interest-only payments for five years. Only then would the principal come due.

But despite the favorable nature of the 1999 loan and a lengthy extension to make good on his obligations, Justice Thomas failed to repay a “significant portion” — or perhaps any — of the $267,230 principal, according to a new report by Democratic members of the Senate Finance Committee. Nearly nine years later, after Justice Thomas had made an unclear number of the interest payments, the outstanding debt was forgiven, an outcome with ethical and potential tax consequences for the justice.

“This was, in short, a sweetheart deal” that made no logical sense from a business perspective, Michael Hamersley, a tax lawyer who has served as a congressional expert witness, told The New York Times.

The Senate inquiry was prompted by a Times investigation published in August that revealed that Justice Thomas bought his Prevost Marathon Le Mirage XL, a brand favored by touring rock bands and the super-wealthy, with financing from Anthony Welters, a longtime friend who made his fortune in the health care industry.

In a statement to The Times this summer, Mr. Welters said the loan had been “satisfied” in 2008. He declined to answer whether that meant Justice Thomas had paid off the loan in full; nor did he respond to other basic questions about the terms. But while a number of questions remain, he gave a much fuller account to the committee, which has the authority to issue subpoenas and compel testimony.

The documents he volunteered indicate that, at the very least, Justice Thomas appears to have flouted an ethics rule requiring that he include any “discharge of indebtedness” as income on required annual financial disclosure reports. In addition, the Internal Revenue Service treats debt forgiveness as income to the borrower.

Senator Ron Wyden, the Oregon Democrat who leads the Senate Finance Committee, called on Justice Thomas to “inform the committee exactly how much loan was forgiven and whether he properly reported the loan forgiveness on his tax return and paid all taxes owed.”

Justice Thomas did not respond immediately to questions sent to him through the Supreme Court’s spokeswoman.

In recent months, amid a series of reports of ethical lapses, the Supreme Court has faced intense public pressure to adopt stricter ethics rules, with several justices publicly endorsing such a move. Much of the controversy has centered on how wealthy benefactors have bestowed an array of undisclosed gifts on Justice Thomas and his wife, Virginia Thomas: buying and renovating the home where his mother lives, helping to pay for his great-nephew’s tuition and hosting the couple on lavish vacations that included travel aboard private jets and superyachts.

Ethical Issues Inside the Supreme Court

  • Ethics Code: Justice Amy Coney Barrett said that she favored an ethics code for the Supreme Court, joining the growing chorus of justices who have publicly backed adopting such rules.
  • Koch Network Events: Justice Clarence Thomas twice attended an annual donor summit organized by the conservative political network established by the billionaire industrialists Charles and David Koch.
  • Calls for an Ethics Code: In an interview at Notre Dame, Justice Elena Kagan said that the Supreme Court should adopt a code of ethics, saying that “it would be a good thing for the court to do that.”
  • Financial Disclosures: In his annual financial disclosure form, Justice Thomas responded in detail to reports that he had failed to disclose luxury trips and a real estate transaction with a Texas billionaire.

Oct. 24

ny times logoNew York Times, If Trump Trial Isn’t Broadcast Live, a Plea to Record It for Posterity, Adam Liptak, Oct. 24, 2023 (print ed.). A request to broadcast one of Donald Trump’s federal trials made an intriguing argument, one rooted not in the news but in ensuring a historical record.

In a pair of filings this month, news organizations asked a federal judge in Washington to allow live television coverage of the trial of President Donald J. Trump on charges that he conspired to undermine the 2020 election. They face a distinctly uphill fight.

A federal rule of criminal procedure stands in their way, and the Supreme Court has long been wary of cameras in courtrooms, notably its own.

But one of the applications, from the corporate parent of NBC News, made an intriguing backup argument, one grounded in the text of a key roadblock to live television coverage: Rule 53 of the Federal Rules of Criminal Procedure.

If nothing else, the application said, Rule 53 allows the court to record the proceedings for posterity.

The rule prohibits “the broadcasting of judicial proceedings from the courtroom.” NBC’s application bears down on the last three words, making the case that audio and video of the trial may be distributed in ways other than by broadcast “from the courtroom.”

Oct. 11

 

 

south carolina mapny times logoNew York Times, A District Moved Right. Then Its Congresswoman Helped Remove McCarthy, Jonathan Weisman, Oct. 11, 2023. Nancy Mace’s increasingly red district may explain why she went from denouncing far-right Republicans to helping them overthrow Speaker Kevin McCarthy. The Supreme Court will hear arguments Wednesday on Representative Mace’s newly drawn South Carolina district, which has gotten redder since she was first elected.

U.S. House logoWhen South Carolina’s First Congressional District evoked wide sand beaches, Spanish moss, oyster and cocktail bars and hot yoga, its Republican congresswoman, Nancy Mace, right, made her name appealing for moderation on abortion, nancy maceclimate change and marijuana legalization, while calling out the G.O.P.’s biggest bomb throwers as bigoted clowns.

Then in 2022 came the redrawing of district lines, as rural reaches like Cordesville, S.C., with their modest one-story brick homes and prefabricated double-wides, replaced the graceful mansions and Black neighborhoods of Charleston. So last week, when Ms. Mace shocked Washington and joined seven hard-core conservatives to oust Representative Kevin McCarthy from the speaker’s chair, her new constituents were not surprised.

“I’ve always heard the squeaky wheel gets the oil, and when you’re a female, you don’t get heard unless you’re loud,” said Janet Jurosko, a new constituent of Ms. Mace’s from Cordesville and the auditor of Berkeley County, S.C., which joined the First District in its totality last year. “I think she’s doing a good job — I really do.”

Ms. Mace still calls herself an iconoclast, but her transformation from denouncing the likes of Representative Matt Gaetz, Republican of Florida, to joining him in the first overthrow of a sitting speaker underscores a truism: Voters lead their politicians; politicians don’t lead their voters.

djt maga hatThough Ms. Mace’s turn to the MAGA wing of the G.O.P. has been ongoing, the increasingly red nature of her district may help explain her latest move. She weathered a Republican primary challenge from the right in 2022 from a candidate endorsed by former President Donald J. Trump and learned the lesson that criticizing or opposing Mr. Trump in the G.O.P. would always be a trial.

But voters in her district believe the new map charted her course.

south carolina in us map“Nancy has always been and will always be a maverick,” said Josh Whitley, a Berkeley County commissioner and a Mace ally. “But she has also always been very mindful of her constituents.”

The way South Carolina’s First Congressional District was redrawn by the Republican-led legislature touches on two consequential effects of gerrymandering at once: political dysfunction and polarization, and the potential for Black disenfranchisement. As Ms. Mace helps choose a new speaker in the Capitol on Wednesday, her district’s map will be the subject of oral arguments before the Supreme Court where the conservative supermajority has recently shown sensitivity to the issue of racial gerrymandering.

 

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.Clarence Thomas McConnell Center flickr CC BY NC ND 2.0

 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.

ny times logoNew York Times, Clarence Thomas Renews Call for Reconsideration of Landmark Libel Ruling, Adam Liptak, Oct. 11, 2023 (print ed.). The justice wrote that the decision, New York Times v. Sullivan, lets news organizations “cast false aspersions on public figures with near impunity.’”

Justice Clarence Thomas renewed his call on Tuesday for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it more difficult for public officials to prevail in libel suits.

Justice Thomas wrote that the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it. He added, quoting an earlier opinion, that it “comes at a heavy cost, allowing media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’”

Justice Thomas has been the subject of a series of news reports raising questions about whether he had violated ethics rules. The reports said he had failed to disclose gifts and trips from Harlan Crow, a Texas billionaire who has donated to conservative causes.

The Sullivan decision and ones that followed it require public figures suing for defamation to prove that the defendant had acted with “actual malice.” The phrase is a legal term of art and does not connote the ordinary meaning of malice in the sense of spite or ill will.

Instead, to prove actual malice a plaintiff must show that the defendant knew the disputed statement was false or had acted with “reckless disregard.” That second phrase is also a term of art. The Supreme Court has said that it requires proof that the writer entertained serious doubts about the truth of the statement.

Justice Thomas has been a longtime critic of the actual malice standard, and Tuesday’s opinion returned to earlier themes, quoting earlier opinions. The Sullivan ruling and ones elaborating on it, he wrote, “were policy-driven decisions masquerading as constitutional law” with “no relation to the text, history or structure of the Constitution.”

In 2021, Justice Neil M. Gorsuch added his voice to the criticism of the decision. He wrote that much had changed since 1964, suggesting that the actual malice doctrine might have made more sense when there were fewer and more reliable sources of news, dominated by outlets “employing legions of investigative reporters, editors and fact-checkers.”

Justice Gorsuch added, “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

Justice Thomas’s latest opinion came in a case brought by Don Blankenship, a former coal company executive and Senate candidate in West Virginia. He sued several news organizations for calling him a felon after he was convicted of conspiracy, a misdemeanor, in connection with the aftermath of a mine explosion.

The U.S. Court of Appeals for the Fourth Circuit ruled against him, saying he had not cleared the high bar required by the Sullivan decision.

The Supreme Court rejected Mr. Blankenship’s request that it review that decision, without giving reasons. Justice Thomas concurred, saying the case was a poor vehicle for deciding the fate of Sullivan because West Virginia law also required Mr. Blankenship to prove actual malice to prevail.

“In an appropriate case, however,” Justice Thomas wrote, “we should reconsider New York Times and our other decisions displacing state defamation law.”

U.S. Supreme Court Decisions and Developments

  • A Challenging Docket: The Supreme Court has returned for a new term, picking up where it left off on the most contentious issues of the day, with cases connected to government power, gun rights and abortion.
  • Consumer Financial Protection Bureau: A majority of the justices seem ready to reject a challenge to the constitutionality of the agency, which was set up during the Obama administration to crack down on abuses by banks and other financial services providers.
  • State Social Media Laws: The justices will decide whether Florida and Texas may prohibit social media companies from removing posts based on the views they express, setting the stage for a major ruling on how the First Amendment applies to tech platforms.

ny times logoNew York Times, At Harvard, a Battle Over What Should Be Said About the Hamas Attacks, Anemona Hartocollis, Stephanie Saul and Vimal Patel, Updated Oct. 11, 2023. After a Harvard student group blamed Israel for the violence, a former president of the university condemned the leadership for not speaking up.

harvard logoWithin a few days of the George Floyd killing and Russia’s war against Ukraine, Harvard and other universities issued statements, claiming solidarity with the victims. Immediately after the Hamas attacks in Israel — in which assailants killed women and children — Harvard was quiet even as criticism mounted over an open letter from a student coalition.

The letter, from Harvard Palestine Solidarity Groups, said it held “the Israeli regime entirely responsible for all unfolding violence.”

The backlash to that letter turned Harvard’s silence into a roar.

On Monday, Lawrence H. Summers, the former Treasury secretary and former Harvard president, condemned the university’s leadership, for not denouncing the pro-Palestinian letter.

“In nearly 50 years of @Harvard affiliation, I have never been as disillusioned and alienated as I am today,” he wrote on X, formerly Twitter. Harvard’s silence, coupled with the student coalition letter, he said, “has allowed Harvard to appear at best neutral towards acts of terror against the Jewish state of Israel.”

claudine gay steven senne apOn Monday night, and again with more force on Tuesday, Harvard spoke. Its president, Claudine Gay (shown above in an Associated Press  photo by Stephen Senne), issued two statements, ultimately condemning “the terrorist atrocities perpetrated by Hamas” as “abhorrent.”

The debate over Israel and the fate of Palestinians has been one of the most divisive on campus for decades, and has scorched university officials who have tried to moderate or mollify different groups.

But Dr. Summers’s pointed criticism raised questions about the obligation of universities to weigh in on difficult political matters.

A famous 1967 declaration by the University of Chicago called for institutions to remain neutral on political and social matters, saying a university “is the home and sponsor of critics; it is not itself the critic.” But students over the years have frequently and successfully pressed their administrations to take positions on matters like police brutality, global warming and war.

But the controversy at Harvard is “a moment to think about the virtues of neutrality,” said Tom Ginsburg, faculty director of the newly created Forum for Free Inquiry and Expression at the University of Chicago.

Dr. Ginsburg said he looked at 17 major universities and found that all but two released a statement about Ukraine. (The University of Chicago did not.)

“Not one had a statement about the Ethiopia conflict, which started a year before,” he said, referring to a civil war that left thousands dead and displaced more than two million people.

Oct. 10

supreme court 2022 o

ny times logoNew York Times, Does the Supreme Court’s Cherry-Picking Inject Politics Into Judging? Adam Liptak, Oct. 10, 2023 (print ed.). By choosing among and sometimes writing the questions the court agrees to answer, recent studies say, the justices have distorted the judicial process.

We say that the Supreme Court decides cases, but that is not correct. It picks isolated questions to answer, often choosing among ones proposed by the parties or writing ones of its own.

That practice adds a disturbing element of politics to the judicial process, said Benjamin B. Johnson, a law professor at the University of Florida and the author of three recent papers on the subject.

“They are no longer doing what a court does, which is deciding cases,” he said. “They’re now doing what a legislature does, which is answering discrete policy questions.”

Consider a few examples.

  • When the court agreed to hear one of this term’s most important cases, it rejected a modest question proposed by the plaintiffs and said it would only consider one that asked it to overrule an important precedent, Chevron v. Natural Resources Defense Council.
  • The same thing happened in the Dobbs case, which eliminated the constitutional right to abortion. When the court granted review, it picked only the broadest of the three proposed questions, one that led it to overrule Roe v. Wade.

“Even though the court had alternative pathways to resolve the case without inviting a firestorm of controversy,” Professor Johnson wrote in the Alabama Law Review, “the justices intentionally eliminated those alternatives from their review.”

In the recent case of a Christian web designer who challenged a Colorado law barring discrimination based on sexual orientation, the court accepted only part of one of her two proposed questions. The court said it would not consider whether the law was at odds with her right to free exercise of her religion and would treat the case solely a free-speech challenge.

And when the court agreed to hear two big cases on the First Amendment and social media last month, it did not adopt the questions proposed by any of the parties. It looked instead to a friend-of-the-court brief filed by the Biden administration, choosing two of its four questions.

This sort of cherry-picking and revision, Professor Johnson said, is on the rise. “What was once a relatively rare occurrence now makes up between a tenth and a quarter of the docket,” he said.

U.S. Supreme Court Decisions and Developments

  • A Challenging Docket: The Supreme Court has returned for a new term. The justices will revisit issues like gun rights, government power, race and free speech as they face scrutiny of their conduct off the bench.
  • Consumer Financial Protection Bureau: A majority of the justices seem ready to reject a challenge to the constitutionality of the agency, which was set up during the Obama administration to crack down on abuses by banks and other financial services providers.
    State Social Media Laws: The justices will decide whether Florida and Texas may prohibit social media companies from removing posts based on the views they express, setting the stage for a major ruling on how the First Amendment applies to tech platforms.

Oct. 1

 

leonard leo ap carolyn kaster

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

washington post logoWashington Post, For Supreme Court, ethics have become the elephant in the courtroom, Robert Barnes and Ann E. Marimow, Oct. 1, 2023. Some of the issues and political stalemates that haunt the Supreme Court are returning for the term that begins Monday, accompanied by another concern: how to convince the public that the justices take seriously their ethical obligations.

Reports about some justices hobnobbing with billionaire friends on lavish trips and maintaining ties to those who have business before the court have become the elephant in the courtroom.

In recent weeks, two justices have spoken out to say the court should take steps to implement a pledge that Chief Justice John G. Roberts Jr. made in May: to make “certain that we as a court adhere to the highest standards of conduct.”

 

September

Sept. 30

supreme court Custom

ny times logoNew York Times, Supreme Court to Hear Challenges to State Laws on Social Media, Adam Liptak, Sept. 30, 2023 (print ed.). The tech industry argues that laws in Florida and Texas, prompted by conservative complaints about censorship, violate the First Amendment.

The Supreme Court agreed on Friday to decide whether Florida and Texas may prohibit large social media companies from removing posts based on the views they express, setting the stage for a major ruling on how the First Amendment applies to powerful tech platforms.

The laws’ supporters argue that the measures are needed to combat what they called Silicon Valley censorship, saying large platforms had removed posts expressing conservative views on issues like the coronavirus pandemic and claims of election fraud. In particular, they objected to the decisions of some platforms to bar President Donald J. Trump after the Jan. 6, 2021, attack on the Capitol.

Two trade groups, NetChoice and the Computer & Communications Industry Association, had challenged the laws, saying the First Amendment prevents the government from telling private companies whether and how to disseminate speech.

The court’s decision to hear the cases was unsurprising. In each case, both sides had urged the justices to do so, citing a clear conflict between two federal appeals courts. One ruled against the Florida law, the other in favor of the one in Texas.

Sept. 26

washington post logoWashington Post, Election 2024: Supreme Court refuses to allow Alabama to use disputed map for 2024, Robert Barnes, Sept. 26, 2023. The Supreme Court on Tuesday refused Alabama’s request to hold 2024 elections under a new congressional map judged to be an unlawful attempt to diminish the power of the state’s Black voters.

It was the second time in four months that the high court has sided with a three-judge panel that found that Alabama’s legislature probably violated the Voting Rights Act by failing to create a second congressional district where minority voters have a large enough share of the electorate to elect their candidate of choice. The state has seven districts, and its voting population is about 27 percent Black.

The case has been closely watched because of an unprecedented number of challenges to congressional maps that are advancing in courts throughout the country, enough to give one political party or the other an advantage heading into the 2024 elections. The map courts envision for Alabama, for instance, could mean a second Democrat in the state’s congressional delegation. Meanwhile, federal judges in Georgia and Louisiana have found similar Voting Rights Act violations in maps from those states.

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.Clarence Thomas McConnell Center flickr CC BY NC ND 2.0

 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 logoWashington 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

 

samuel alito frowing uncredited

ny times logoNew 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.

ny times logoNew 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 janet protasiewiczoverturned 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.

wisconsin map with largest cities CustomJanet 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.

ny times logoNew 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 headshotPeter 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.”

   Former President Donald Trump is shown in a police booking mug shot released by the Fulton County Sheriff’s Office, on Thursday (Photo via Fulton County Sheriff's Office).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 amit mehta Customwillfully 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.

 

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. absence of support from Georgia's Republican election officials supporting his claims. 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.

ny times logoNew 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.

jim jordan shirtsleeves

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 logoWashington 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.

anthony kennedy oSince 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.Clarence Thomas McConnell Center flickr CC BY NC ND 2.0

 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.

ny times logoNew 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

 

manhattan institute

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.

manhattan institute logoThe 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. 

ny times logoNew 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.

john roberts oAs 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.”

samuel alito frowing uncreditedThese 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.

Elena Kagan O HRLast 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

 

   Former President Donald Trump is shown in a police booking mug shot released by the Fulton County Sheriff’s Office, on Thursday (Photo via Fulton County Sheriff's Office).

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 webster tarpley 2007Atlanta, 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;

Former President Donald J. Trump and several of his fellow defendants, in mug shots released by the Fulton County Sheriff’s Office in Atlanta (Photos by Fulton County Sheriff’s Office).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;

yevgeniy prigozhin battle gear apPrigozhin, 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;

Leaders from Brazil, China, South Africa, India and Russia convene at the BRICS Summit in South Africa on Aug. 23 2023 (Pool photo).

brics logoBRICS 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

leonard leo ap carolyn kaster

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

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

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

Politico, 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.

politico CustomWashington 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

 

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

washington post logoWashington 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.

pro publica logoThomas’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

ny times logoNew 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).

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

ny times logoNew 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

 

djt march 2020 Custom

washington post logoWashington 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.

FBI logoThe 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.

jack smith 6 9 2023 cnnSmith, shown above, was tapped in November to take charge of the both high-profile investigations, after Trump launched his 2024 presidential election campaign and Justice Department log circularAttorney 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 logoWashington 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.

michigan mapSpecial 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

samuel alito frowing uncredited

washington post logoWashington 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.

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 wayne madsen may 29 2015 cropped Smallinternational 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.

wayne madesen report logoIt 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 josemaria escrivanicknamed “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.

john mccloskey priestIt 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 logoWashington 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

 

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washington post logoWashington 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

samuel alito frowing uncreditedSalon, 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.

paul singer

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 logoWashington 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..

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.

ny times logoNew 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

 

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ny times logoNew 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

ny times logoNew 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 michael ponsorthe 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

 

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ap logoAssociated 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.

new york post logoIn 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

sonya sotamayor saul loeb afp via getty imagesThe 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 logoMichigan 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.

clarence thomas official scotus portraitFor 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 Elena Kagan O HRorganizer 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.

neil gorsuch headshotMonths 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 mitch mcconnell2federal 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

ny times logoNew 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), linda greenhouse cover just a journalistJuly 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 john roberts othat 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

 

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ny times logoNew 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 logoWashington 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 ruth marcusfollow 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.

ny times logoNew 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 tarpley 2007Webster 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.

ny times logoNew 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.

 

supreme court amazon images

ny times logoNew 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 logoWashington 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.

ny times logoNew 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 logoWashington 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

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

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

washington post logoWashington Post, 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 logoWashington 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.

john roberts oBiden 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.”

ny times logoNew 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 webster tarpley 2007historian, 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 logoWashington 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.”

ny times logoNew 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.

ny times logoNew 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.

ny times logoNew 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.

ny times logoNew 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.
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ny times logoNew 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.”

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

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

ny times logo 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.

john roberts oThe 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 ketanji brown jackson robearbitrary, 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.”

washington post logoWashington 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 harvard logowithout 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?

north carolina map

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

 

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washington post logoWashington 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 logoWashington 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

samuel alito frowing uncredited

washington post logoWashington 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.

pro publica logoAlthough 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.”

ny times logoNew 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.

ny times logoNew 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 linda greenhouse cover just a journalistbelieve 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 logoWashington 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

samuel alito frowing uncreditedwashington post logoWashington 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.

pro publica logoSupreme 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 politico Customcases (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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

ny times logoNew York Times, A 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

ny times logoNew 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.

ny times logoNew 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 logoWashington 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.)

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 logoWashington 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, jennifer rubin new headshotholding 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.

ny times logoNew 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 shira scheindlin ap 2013cases 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.

ny times logoNew 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.

ny times logoNew 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

 

djt confidential markings

djt indicted proof

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

ny times logoNew 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!”

ny times logoNew 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.

ny times logoNew 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.

ny times logoNew 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.”

republican elephant logoMembers 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.

djt looking up

washington post logoWashington 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.

jack smith graphicThe 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.

FBI logoMuch 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

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

ny times logoNew 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.

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.

 

mark meadows with cell

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.)

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 logoWashington 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 ruth marcus twitter Customof 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

ny times logoNew 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

 

stewart rhodes djt

ny times logoNew 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 Saul Loeb/Agence France-Presse — Getty Images

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). 

ny times logoNew 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.

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 seth abramson graphicDefamation, 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.

seth abramson proof logoApparently 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).

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

ny times logoNew 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 randall eliasonsection 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 logoWashington 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 Senior U.S. District Judge Mark L. Wolf (Martha Stewart photo)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.

john kennedy o law sen“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.”

sheldon whitehouseSen. 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.

mark wolfWolf, 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 logoWashington 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 ruth marcus twitter Customcareer 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

 

diane feinstein older

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 time logo ogaides’ 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.

senate democrats logoAs 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.

  

george santos mug

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

ny times logoNew 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.

U.S. House logoHouse 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 republican elephant logoCommittee, 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 logoWashington Post, Analysis: The curious question of the alleged $2 million pardons, Philip Bump, May 18, 2023 (print ed.). The allegation comes in a lawsuit philip bumpfiled 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.”

noelle dunphy rudy giulianiIf 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.

raja krishnamoorthi resized oThe 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

 

south carolina map

ny times logoNew 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.

supreme court graphicA 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.”

James ClyburnThe 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.

nancy maceRepublican 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.

ny times logoNew York Times, Analysis: 16 Crucial Words That Went Missing From a Landmark Civil Rights Law, Adam Liptak, right, May 15, 2023. The phrase, seemingly adam liptakdeleted 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.

don willett confirmationThe 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.

don willettIn 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

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

washington post logoWashington 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 bill palmerappointed 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.

bill palmer report logo headerWe 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).

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.

politico CustomBillionaire 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.

irs logoThe 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 of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)

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.)

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 politico Customon 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.”

richard durbin hDurbin, 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.

 May 4

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

United States Supreme Court Justice Clarence Thomas (l) with his wife, Virginia (Ginni) Thomas (r).

washington post logoWashington 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).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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

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

washington post logoWashington 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.

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washington post logoWashington 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 ruth marcusyou 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 logoWashington 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.”

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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 logoWashington 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).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).

ny times logoNew 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.

gmu scalia law logoJust 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 neil gorsuch headshotJudge 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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

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 clarence thomas HRBrett 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

 samuel alito horizontal headshot

washington post logoWashington 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 gail curleyCurley (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

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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.)

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.)

ap logoAssociated 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.

 

djt mike pence

ap logoAssociated 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.

Justice Department log circularIt 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

 

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

ny times logoNew 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.

neil gorsuch headshotOne 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.”

ny times logoNew 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.

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

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

ny times logoNew York Times, Analysis: Supreme Court Trades Ambition for Prudence in Abortion Pill Ruling, Adam Liptak, right, April 23, 2023 (print ed.). The court’s order adam liptakensuring 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 john roberts olegal 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

 

fda logo

mifepristone Allen g breed ap

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 ap logorequest 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 Justice Department log circularand 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 cbs news logoone 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.

 

american medical association ama logo

ny times logoNew 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 jack resneck jrpresident 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.

 

 fda logo

ny times logoNew 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 of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)

United States Supreme Court Justice Clarence Thomas (l) with his wife, Virginia (Ginni) Thomas (r).

washington post logoWashington Post, Opinion: Clarence Thomas enters the danger zone, Ruth Marcus, right, April 16, 2023 (print ed.). The matter of Clarence Thomas’s relationship with ruth marcus twitter Custombillionaire 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 bill palmerreminder 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.

bill palmer report logo headerWe 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).

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

washington post logoWashington 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 of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)

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 bill palmerreminder 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.

bill palmer report logo headerWe 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).

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

ny times logoNew 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 of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)

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 john roberts owithout 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.

 

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

The official portrait of the U.S. Supreme Court

supreme court Custom

ny times logoNew 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.

antonin scalia HR 1300Failing 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.

stephen breyer wJustice 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).

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

ny times logoNew 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.

sheldon whitehouse“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

 

 dick durbin speaking screenshot

ny times logoNew 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.

senate democrats logoDemocratic 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. john roberts oRoberts 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.”

pro publica logoAfter 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.

clarence thomas official wDemocrats 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

 

A portrait of Supreme Court Justice Samuel Chase, nicknamed

washington post logoWashington 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).

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

pro publica logo

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.

axios logoDriving 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 logoWashington 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 logoWashington 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.

ny times logoNew 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 of thirty-five years, Virginia (Ginni) Thomas (r). (Safe Image)

United States Supreme Court Justice Clarence Thomas (l) with his wife, Virginia (Ginni) Thomas (r).

washington post logoWashington 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

ny times logoNew 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.

ny times logoNew 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 david french croppedkind 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). (Safe Image)

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

washington post logoWashington Post, 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 U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

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

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

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

 

couy griffin facebook

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 logoWashington 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 webster tarpley 2007eve 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, bill palmerMarch 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.

bill palmer report logo headerIn 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).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 President Zachary Taylorthat 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 logoWashington 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

ny times logoNew 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.

ny times logoNew 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 logoWashington Post, Opinion: The justices halt an execution — and reveal themselves in the process, Ruth Marcus, Feb. 26, 2023 (print ed.). When a ruth marcus twitter Customprisoner 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

 

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

The official portrait of the U.S. Supreme Court

washington post logoWashington 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 logoWashington 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.

google logo customIn 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 logoWashington 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.

google logo customOn 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

 

tucker carlson fox horizontal

ny times logoNew 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 dominion voting systemsdefamation suit against Fox News by Dominion Voter Systems.