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Democracy, Republicans

The Long Game: SCOTUS imperils California’s authority to protect the coast

A 5-4 ruling of the U.S. Supreme Court, in Knick v. Township of Scott, threatens the California Coastal Commission’s ability to oversee land and water use in the coastal zone and to ensure public access to beaches and oceanfront. But not right away. The activist conservative ideologues that form the 5-man Republican majority on the Court – in lockstep with the conservative legal movement – are playing the long game. The four Democratic justices in the minority of the Court’s most significant 5-4 decisions (which will continue inexorably for the foreseeable future), understand the long game, and are responding with increasingly furious dissents as the majority overturns longstanding precedents.

The case at hand is nothing special: a property owner’s dispute regarding a land use decision by a local government.  The decision overturned a 1985 ruling – and decades of previous precedents – that required property owners to seek redress in state courts (when state and local land use decisions were in dispute) rather than in federal court. In Knick v. Township of Scott, the majority ruled that property owners in land use disputes could bypass state courts and proceed immediately to the federal courthouse.

The common law concept of eminent domain is a sovereign power of the state to ‘take’ property – chiefly to purchase land for public use (to build a highway, a city hall, or an aqueduct, for instance). States may also impose averse restrictions on property to protect public interests (such as to ensure sustainable development along California’s coast), a regulatory taking. Takings are pervasive at the federal, state, and local levels – and have existed since before the Constitution was ratified. In the 19th century, the taking of private property was instrumental in construction of transcontinental railroads.  

The law and practice in this area is so well established that the prospects for successfully resisting takings in state courts are severely limited. So the conservative legal movement has focused for decades on capturing the federal courts, in this case with some creative legal theories regarding the Constitution’s Takings Clause.

The Takings Clause (the last lines of the Fifth Amendment) reads in full: “nor shall private property be taken for public use, without just compensation.” The conservative legal movement (including the Federalist Society, which can take the lion’s share of credit in the seating of the five-member ideological conservative majority on the Supreme Court) has pushed since the Reagan era to change Constitutional law so that the property rights of individuals trump the authority of government to interfere with those rights, as the California Coastal Act has done successfully.

David Savage in the Los Angeles Times noted the environmental implications of this ruling for California, which has strict regulations restricting development in cities and on the coast. Based on the Coastal Commission’s considerable influence and the persistent challenges it has faced since its inception, the biggest target of movement conservatives, in my view, is the California Coastal Act of 1976.

In fall 1972, California voters passed Proposition 20, which established the California Coastal Commission. Under Prop 20, the Commission’s authority was to expire in four years; the legislature made the law permanent when it passed the California Coastal Act of 1976. Environmental advocates have found reason to criticize the Commission from time to time. (The Coastal Commission, for instance, approved construction of an estate, featuring five houses, in the mountains overlooking the Pacific for U2 guitarist The Edge, aka David Evans. But Evans lost his latest battle to build with the victory going to the Sierra Club, which opposed the Commission’s approval. In March this ruling was described by the Malibu Times as the “nail in the coffin” for Evans’ plans after a 14-year legal battle. Rest assured, he will appeal to federal court now.)

On the whole, despite the criticism, the Coastal Commission has been extraordinarily successful in protecting the California coast from unsustainable development. (In the Evans’ case, it acted to establish compliance with previous setbacks it had suffered in court.) While its efforts to ensure public access to beaches where very rich people live have been less successful – with court battles dragging on for decades, creating legal stalemates – it has continued its efforts on behalf of the public, often (if not always) winning.

Throughout the past four decades, the Commission’s authority has been under fierce attack by conservatives, who oppose environmental regulations and regard the Commission’s strict environmental rules as draconian. The Act has withstood most significant legal challenges, because it was well crafted to conform to precedent and established law.

That changed with this week’s ruling in favor of Rose Mary Knick, the client of the Pacific Legal Foundation, which has been on a quest to get federal courts to reinterpret the Takings Clause for decades. This ruling is hardly PLF’s first victory at the high court, but it is potentially its most far-reaching victory to date.

This ruling is troubling because if every land use dispute becomes a federal case, with a Supreme Court majority comprised of conservative ideological activists, then the authority of government to enact and enforce environmental regulations will be subject to challenge. The legal basis for environmental protections has suddenly become much less secure. Not only the California Coastal Act, but the Clean Air Act, the Clean Water Act, the Environmental Protection Agency, the Endangered Species Act, and much else are all at risk of being ruled unconstitutionally burdensome – a violation of the Takings Clause.

Last month, in a post about two recent Supreme Court cases, I wrote about the expansive agenda of the aggressively activist conservative SCOTUS majority. The five Republican men comprising the court’s majority have sidestepped textualism and originalism (to which they sometimes pledge allegiance) and rejected the conservative legal principle stare decisis. Rather than reliance on the Constitution, or devotion to legal principle, the majority appears committed to results-oriented jurisprudence—consistent with the Republican Party’s wish list.

In the second case, Franchise Tax Board v. Hyatt (which overturned Nevada v. Hall), Justice Breyer expressed concern, in light of the majority’s disregard of stare decisis, about future rulings of the court:

“It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.”

In Knick v. Township of Scott, Justice Kagan objected in her dissent: ‘Under cover of overruling “only” a single decision, today’s opinion smashes a hundred-plus years of legal rulings to smithereens.’

She referenced Breyer’s dissent in Hyatt:

Just last month, when the Court overturned another longstanding precedent, JUSTICE BREYER penned a dissent…. He wrote of the dangers of reversing legal course “only because five Members of a later Court” decide that an earlier ruling was incorrect…. He concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

Then Kagan concluded, “Well, that didn’t take long. Now one may wonder yet again.”

While I have focused on the consequences for environmental law – and the threat to the California Coastal Commission – the implications of this ruling are far broader.

This reinterpretation of the Takings Clause also threatens workplace-safety regulations, progressive taxation, and employee rights. As I wrote last month, this activist conservative majority may be ushering us into a new Lochner Era, when federal rules and regulations did not impede business or corporations. With the latest 5-4 ruling, the court takes us a step closer to overturning federal authority to ensure that we have clean air and water, safe workplaces, consumer protections, and the right to union representation.

2020 General Election, Donald Trump

“Because he’s one of the best presidents we’ve had for a very long time. Very long time.”

Reporter’s question to Trump supporter: “What’s the main reason you’ll vote for him again?“

Her response:

“The main reason? Because he’s one of the best presidents we’ve had for a very long time. Very long time.
He doesn’t lie. I know y’all say he does. He doesn’t. He doesn’t.  And I’m just going to be honest. I’m not trying to be mean. But the way the media treats him, it’s a disgrace.”

Donald Trump will get her vote. And it won’t matter that Trump hasn’t really delivered on his campaign promises.

It has been clear forever (or at least since my first post on this blog) that Trump has no intention of reaching out beyond his base.

Trump is undoubtedly convinced that whipping up the base worked for him last time. (Well, in the last presidential campaign, not in 2018.) But in 2020, James Comey will be out of sight; there will be no Clinton Cash: The Untold Story of How and why Foreign Governments and Businesses Helped Make Bill and Hillary Clinton Rich as a template for mainstream media reporting; the Democratic nominee won’t neglect campaigning in Michigan, Wisconsin, or Pennsylvania; and no one will be confident that either staying home or casting a protest vote couldn’t possibly prevent a Democratic victory.

This time around: we’ve experienced a Trump presidency, we’ll be looking out for Putin’s meddling, and Democrats – aware that Trump’s reelection would pose an existential crisis – will pull out all the stops to win.

That’s not a guarantee, but as much fun as Trump’s campaign rallies generate for true believers (“Lock her up! Lock her up!”), and as much bewildered angst as they create for more critical observers (“He doesn’t lie. I know y’all say he does. He doesn’t.”), it’s not clear that Trump is helping himself. As Jonathan Bernstein notes, “… the question is what Trump has accomplished with all of his non-stop electioneering. And the answer to that is pretty simple: Bupkis. Nada. Nothing.”

Democrats should be heartened by this. In Josh Marshall’s words, “… the idea that Trump can be a complete maniac and buffoon but none of it matters because of the electoral college or other magic powers becomes at a certain point enervating and demoralizing for those who see the danger he represents and the necessity of his electoral repudiation. There’s little evidence to back it up.”

There’s no guarantee. But Trump’s foolery may end up mattering.

Off the Rails, Republicans

Adam Schiff: Bill Barr is the second most dangerous man in the country

“But I do want to, before we move on from the subject of Barr and contempt, talk about, I think, the most grave concern about Bill Barr. And that is, during his Senate testimony, he opined that the president could have made the Mueller investigation go away any time he wanted because he thought it was unfair. That’s his view of the unitary executive.

Under that view a president is truly above the law. Because what president would not think an investigation against him or her was unfair? It also means that the president can make go away any of the investigations that were farmed out to any of the other elements of the Department of Justice. And, because they are stonewalling us on just about everything, it also means that we might not know – unless whistleblowers step forward – whether Bill Barr is abusing his authority even beyond the fundamental abuse by trying to exonerate the president on obstruction of justice.

And so we find ourselves, I think, for the first time with an attorney general who really is the president’s defense lawyer and spokesperson. And who’s quite good at it. And has the veneer of respectability to camouflage what he’s doing. He is not the sophist that Giuliani is. He’s much more dangerous. And I think he’s the second most dangerous man in the country for that reason.

When you listen to his interviews and you listen to the way he dissembles—when he was asked, even on Fox News, about, well, Didn’t Don McGahn call for Mueller to be fired? His answer was, No, he called for him to be removed, as if that’s a distinction that really makes a difference here. When he was asked, Well, you said that the president fully cooperated, but the president wouldn’t even sit down for an interview. No, no, I said the White House fully cooperated.

When you have an attorney general willing to dissemble that way. When you have an attorney general—and I hesitate to use the word, but there’s no other word that seems to apply here—that lies to Congress as he did when Charlie Christ asked him about whether he was aware of these revelations that had been reported about the Mueller team, and he said that he was not. That’s a very dangerous situation.

And as someone who came out of that department—I spent six years with the Justice department. I venerate the department. To think that it is being led by someone this way—you know, it breaks my heart for the department, but it’s profoundly concerning for the country.” – Congressman Adam Schiff on Attorney General Bill Barr, Council on Foreign Relations, June 4, 2019

Ryan Goodman, at Just Security, provides a side by side comparison of Barr’s and Mueller’s statements about the Special Counsel Report. Goodman comments:

“Whether or not Mueller was intentionally trying to correct the record, the differences between what he and Barr said are, in many cases, stark. Some of the differences involve near complete contradictions—in other words Mueller’s statement and Barr’s statements cannot both be true. Other differences are more a matter of emphasis or tone (e.g., references to the threat posed by the Russian operations, descriptions of the qualities of the special counsel staff).

The special counsel’s Report also contradicts some of Barr’s statements (such as his claim that the Report found no evidence of “collusion,” his suggestion that difficult issues of law and fact stopped the special counsel from concluding the president engaged in criminal obstruction, his claim that the President cooperate fully with the investigation). The following analysis, however, does not include the Report. Instead, it focuses only on Mueller’s public statement and how it compares to statements made by Barr between March 22 (the date that the special counsel handed his final report to the attorney general) and May 29 (the date of Mueller’s statement). This includes statements made by Barr in his 4-page summary submitted to Congress, a formal press briefing, and three congressional hearings, but it does not include Barr’s interviews with Fox News and the Wall Street Journal.”

Democracy, Democrats, Donald Trump

Tick tock, tick tock – Why hasn’t the House staged televised hearings with live witnesses?

Well, finally: “In their attempt to move forward with impeachment, the Democrat-led House Judiciary Committee is reaching way back, calling Watergate star John Dean to testify on June 10.”

It’s a beginning and long overdue.

Never mind what you think about impeachment, or Nancy Pelosi’s resistance to it, or optimal timing for it, or initiating impeachment proceedings, or any other permutations. Why haven’t we had televised hearings with live witnesses in the House of Representatives every week since Bill Barr released his redacted version of Robert Mueller’s report? There are scads of people whose testimony the Trump White House can’t possibly block – including many B-List folks who aren’t household names, but (as in the Watergate hearings of another era) can advance the narrative of presidential wrongdoing. (John Dean is fine, as a warm-up, though the Mueller Report mentions a cavalcade of others who have a closer connection to Donald Trump.)

The absence of hearings up till now represents Congressional malpractice. Numerous commentators have highlighted the importance of telling a story through House hearings:

June 6 – Jonathan Bernstein (“Stop Obsessing About Impeachment Poll Numbers“):

What the House can do is relentlessly dramatize and amplify the story that the Mueller report tells, along with other Trump impeachable malfeasance and scandals. So far, they haven’t really done that effectively.

June 4 – Josh Marshall (“Thoughts on Impeachment“):

The most effective action the House can take is to investigate the President’s wrongdoing and bring it before the public and hold the possibility of impeachment in the offing as they bring new evidence to the public about the President’s misrule.
But here’s the thing. . . .
If the most aggressive stance toward President Trump isn’t impeachment but aggressive investigation – which I firmly believe – then you actually have to be aggressive and show you’re being aggressive.

June 2 – Francis Wilkinson (“Before Impeachment, Democrats Must Win the War for Truth“):

Democrats . . . should methodically highlight the truth of Trump’s ethical and policy failures, day after day, in hearings, reports, news conferences and events in Washington and around the country. And then they must get up each succeeding day and do it all over again.

May 30 – Donna Edwards (“Democrats need to repackage the Mueller report for TV“):

It’s time for Democratic leaders to repackage Mueller’s findings in a form that will be more readily digested by the American people. Unfortunately, the current approach of investigations in no fewer than six committees, multiple subpoenas, innumerable court proceedings and White House delay tactics just creates more confusion. How can the United States focus on the findings if a Democratic House will not singularly focus its investigations? From the cheap seats, it appears that there may be too many balls in the air.
It is no surprise that few Americans are talking about the report over the water cooler. The only voice that breaks through with a consistent (if mostly untrue) message is President Trump’s, especially absent an alternative narrative. Democrats should look at this differently. Mueller has given Democrats cover to present that narrative and proceed with impeachment as the appropriate process under the Constitution.

May 29 – Benjamin Wittes (“Mueller Bows Out: What Does Congress Do Now?“)

Congress’s current strategy is an incoherent muddle. . . .
The better approach, in my view, is to focus on live testimony from witnesses who supplied the material about President Trump’s conduct that Mueller made public in the report—mostly but not exclusively in Volume II. There are a lot of these witnesses. Congress could easily hold weekly hearings that would be riveting television. Who knows? They might even get what the president most values in the world: good ratings. The goal would be to focus public attention on the president’s abuse of the intelligence and law enforcement communities and his individual conduct with respect to Russia. Such hearings could develop new information. They could also enrich our understanding of the existing factual record. They would serve to publicly validate and elucidate Mueller’s findings and, critically, to shift those findings from the voice of Mueller himself to the voice of the president’s closest aides. Perhaps most importantly, they would create a sustained vehicle for focusing on Trump’s conduct—which is, and needs to be, the central issue.
If I were in charge of the House judiciary committee, a wide array of witnesses named in the report would receive an invitation for public testimony—and any of them who did not immediately agree to appear would receive a subpoena in short order. The idea would be to bring the Mueller report to life and, along the way, to establish clearly in case law the ability of Congress to conduct such oversight hearings against a recalcitrant executive.

May 22 – David Corn (“Have the Democrats Blown the Trump-Russia Scandal?“):

For five months now, the Democrats have held power within the House. While passing legislation to address voters’ needs and while battling to enforce subpoenas, they could also be telling the story—with hearings featuring witnesses who could present compelling accounts that have a chance of grabbing the nation’s attention for at least a few minutes.
Three percent of Americans say they have read the Mueller report. That number is probably high. Yes, many have seen the headlines and the news accounts summarizing the report’s findings and allegations. But there is something visceral about a well-run hearing. It is a different way of presenting information to the citizenry. (John Dean’s testimony during the Watergate hearings continued for days and captivated the nation.) Congressional hearings could be used to convey the basics of the Trump-Russia scandal that have disappeared in the ceaseless shuffle—and been shoved aside by the debates over collusion and obstruction.

May 5 – Jonathan Bernstein, who has been at it a while (“Impeaching Trump Would Constrain Democrats Too Much“):

The “before” question is whether to continue investigations and hearings as part of regular House oversight, or as part of an explicit impeachment inquiry.
Are there advantages with the latter? Not really, I don’t think. Whether it’s called impeachment or not, what matters at this stage is whether Democrats can find ways to publicize Trump’s malfeasance, in hopes of both hurting Trump’s popularity and of finding new allies among any weak Trump supporters among congressional Republicans.

April 22 – Norman Ornstein (“Impeachment Is Not the Answer. At Least Not Yet“):

What we need is for the Judiciary, Intelligence, and Homeland Security Committees to conduct a series of deep dives into the areas of communication and coordination between Trump and his campaign with Russians and their surrogates, such as WikiLeaks; the multiple categories and areas of obstruction of justice that Robert Mueller outlined; the threats to our intelligence operations and our justice system from Trump and his operatives; and the moves by Russia to interfere in and influence our elections used by Trump and unchecked by Republicans. Other committees, such as Ways and Means and Banking, need to be ready to do the same thing as more information emerges from the SDNY and the New York attorney general, among others, about Trump’s financial dealings, including with the Russians, and about Russian money laundering. The witnesses need to include Mueller and Rosenstein, of course, but also the range of figures mentioned in the report, and also a range of experts in areas such as ethics, constitutional violations, intelligence operations, and election administration and security.
Democrats need to stage and coordinate hearings across committees and subcommittees, to make sure they do not overload Americans’ ability to pay attention. Most important, they need to structure the public hearings in a dramatically different way than usual. Each committee needs to use experienced counsel—a good example might be former U.S. Attorney Preet Bharara—and limit, if not abandon, opening statements, except from the chairs. No five-minute rounds of questions going down the line of every committee member, leading to utterly disjointed discourse, making it easy for hostile witnesses to evade, filibuster, or otherwise avoid follow-ups and get through a five minute period, which is then followed by a five-minute breather with an ally on the Republican side, and then another five minutes from the next member of the panel that may have nothing to do with the previous round of questions.

(Photo of John Dean: screengrab.)

Donald Trump, Off the Rails

Good grief. Bill Barr can hardly sink any deeper into the tank for this president

“I think one of the ironies today is that people are saying that it’s President Trump that’s shredding our institutions. I really see no evidence of that, it is hard, and I really haven’t seen bill of particulars as to how that’s being done. From my perspective the idea of resisting a democratically elected president and basically throwing everything at him and you know, really changing the norms on the grounds that we have to stop this president, that is where the shredding of our norms and our institutions is occurring.” – Attorney General Barr on “CBS This Morning”

For a bill of particulars, of course, we need look no further than the Mueller Report (as if we needed that report as evidence of Trump’s off the rails behavior). And, in the world according to Barr, it’s the opponents of the President who are shredding norms.

The Attorney General’s interview with CBS, following Bob Mueller’s brief public statement earlier in the week, continues his ongoing misrepresentation, obfuscation, and validation of baseless conspiracy theories to subvert the rule of law, undermine our law enforcement and intelligence agencies, and shore up Trump’s political position.

(Full disclosure: the first two words of the headline were inspired by Barr’s hapless mien, reminiscent – to the editor – of Charlie Brown.)

Off the Rails, Republicans, Short & Sweet ... Short & Sour

Profound ignorance: why Fox News and the conservative media bubble are critical to the GOP

NBC News reported on Congressman Justin Amash’s first town hall meeting back in his district after coming out in favor of the impeachment of Donald Trump: “Cathy Garnaat, a Republican who supported Amash and the president said she was upset about Amash’s position but wanted to hear his reasoning. She said that she will definitely support Trump in 2020 but that Tuesday night was the first time she had heard that the Mueller report didn’t completely exonerate the president.”

“I was surprised to hear there was anything negative in the Mueller report at all about President Trump. I hadn’t heard that before,” she said. “I’ve mainly listened to conservative news and I hadn’t heard anything negative about that report and President Trump has been exonerated.”

Republicans

News flash: Mitch McConnell relishes his role as Darth Vader

Quote of the day, on Senator Majority Leader Mitch McConnell’s calculated strategy of embracing his critics’ view of him as a villain:

“If the GOP leader is seen as the guy on the front lines beating back the left, there’s almost no downside unless he somehow he finds himself in a competitive general election.”

Politico has written a puff piece. From the headline, “Mitch McConnell embraces his dark side”; to the Darth Vader pose in the photograph atop the story (not the photo I’ve used); to the report that McConnell collects and displays political cartoons skewering him, sometimes asks the cartoonists to sign them, and keeps a tally – 562 and running, with 16 just this year; to referencing “his sense of humor in private”; to the spin that “McConnell’s recasting as a cartoon villain of the left is a dramatic transformation.”

The ‘news’ is that virtually everything McConnell says and does is politically calculated (as if this were surprising).

In January I posted a comment after seeing two stories (in WaPo and the LA Times) about McConnell’s strategic moves to protect the Republican members of the Senate. I noted that the Majority Leader was also protecting himself, because he was “as vulnerable to a primary challenge in 2020 as anyone else in the Republican caucus.”

I added, parenthetically: “(And, after increasing levels of chaos in the Trump White House throughout the first two years, beating a Democrat after two more years of who knows what, may not be a sure thing by November 2020 even in Kentucky.)” In McConnell’s calculations (more realistic than my wistful hope) that scenario isn’t half as likely as a Republican primary challenge. That’s why the man “has embraced the demonization” Politico celebrates.

Welcome to the contemporary Republican Party.

Republicans, Short & Sweet ... Short & Sour

Congressman Justin Amash – the exception that proves the rule

Congressman Justin Amash (R-MI) has read and recognized the significance of the Mueller Report. Then he has spoken truthfully about it. Because of the ‘R’ next to his name, this is remarkable: an impressive exception, though it seems unlikely to change much of anything.*

Here are my principal conclusions:

  1. Attorney General Barr has deliberately misrepresented Mueller’s report.

  2. President Trump has engaged in impeachable conduct.

  3. Partisanship has eroded our system of checks and balances.

  4. Few members of Congress have read the report.

*Update: Mitt Romney, the Republican Senator (from a Red state that is not all-in with Trump) who has been most critical of Trump, has weighed in on Amash’s comments:

“My own view is that Justin Amash has reached a different conclusion than I have. I respect him. I think it’s a courageous statement, but …” . . .

“As I read the report, I was troubled by it, was very disappointed for a number of reasons. But it did not suggest to me that it was time to call for impeachment. . . .

… I think a number of things that were done were really, really troubling and unfortunate and distressing. Clearly the number of times that there were items of dishonesty, misleading the American public and the media – those are things that really you would not want to see from the highest office in the land. . . .

I don’t think impeachment is the right way to go.”

(Image from the Congressman’s Twitter page.)

Democracy, Republicans

Reversal of Roe v. Wade is only a sliver of the agenda for the activist SCOTUS majority

It’s not just Roe v. Wade that is threatened by a Supreme Court with two Trump-appointed justices. Two Supreme Court cases in the news this week, and the willingness of the activist majority to abandon conservative judicial principles and impose their vision of the Republican platform on the country, presage devastating rulings ahead for environmental protection, health and safety rules, consumer rights, union-organizing, restraining monopolies, and all manner of regulation that seeks to benefit working- and middle-class folks as opposed to big business. The U.S. hasn’t seen such a conservative and aggressively activist SCOTUS majority since before the New Deal.

CASE #1

“District of Columbia v. Heller, which recognized an individual right to possess a firearm under the Constitution, is unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench.” John Paul Stevens, May 14, 2019

In District of Columbia v. Heller, Antonin Scalia’s 5-4 majority opinion struck down a law banning possession of handguns and requiring other firearms to be stored unloaded or locked. The Court’s decision rejected the clear language of the Constitution (which recognized the right to bear arms to sustain well-regulated state militias); Colonial history, when firearm regulations were in place before adoption of the Constitution; a history of uncontroversial federal restrictions on firearms (including a 1927 ban on mail delivery of handguns and a 1934 law outlawing possession of sawed off shotguns and machine guns); and the unanimous 1975 Supreme Court ruling, United States v. Miller, which deferred to the plain language of the Second Amendment, “In the absence of any evidence that the possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

“One of the greatest pieces of fraud”

Stevens writes:

So well settled was the issue that, speaking on the PBS NewsHour in 1991, the retired Chief Justice Warren Burger described the National Rifle Association’s lobbying in support of an expansive interpretation of the Second Amendment in these terms: “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”

It is critical to see what was going on here: The court majority in the Heller case was intent on embracing not a strict reading of the text, or original intent, or legislative history, or a common sense remedy to an acknowledged social problem; instead, the 5-4 majority adopted a historically anomalous interpretation of the Second Amendment, created and espoused in recent decades by the conservative legal movement and powerful allies of the Republican Party, chiefly the National Rifle Association.

Long story short: NRA hardliners in the ’nineties elevated Wayne LaPierre to run the outfit, embraced survivalists and other fringe groups, and transformed the organization from a sportsman’s group to an advocate for militias that opposed “jack-booted government thugs” (ATF agents) and stockpiled arms in anticipation of a fight against federal tyranny. This mutation proved to be highly profitable for the nonprofit organization (and for LaPierre).

Stare Decisis

For former-Justice Stevens, stare decisis (a Latin phrase meaning ‘to stand by things decided’), which is the legal principle that the judiciary will respect precedent, was sufficient to justify upholding the District’s gun regulations. As SCOTUS decisions in previous decades have affirmed [Payne v. Tennessee], stare decisis is “a foundation stone of the rule of law,” which “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Stare decisis alsoreduces incentives for challenging settled  law, saving parties and courts the expense of endless relitigation.

Stevens concludes his essay with mention of mass shootings – at schools, music venues, churches – that now occur with tragic regularity. The 5-4 Heller majority – in rejecting the conservative legal principle, stare decisis, and imposing a viewpoint embraced by Republican Party special interests, chiefly the NRA – made these shootings inevitable by prohibiting sensible regulation of firearms.

CASE #2

Last Monday, another 5-4 Republican majority rejected stare decisis in Franchise Tax Board of California v. Hyatt, a decision (related to a dispute between California and a former Californian, who now resides in Nevada) that hinged on the issue of state sovereignty. Stephen Breyer’s dissent (on behalf of the four Democratic justices) sounded a warning, which has been widely interpreted as anticipating the majority’s willingness to reverse Roe v. Wade. Leah Litman, writing in the New York Times, sounded a common refrain:

… Hyatt has everything to do with the Supreme Court’s respect for precedent. And respect for precedent is one of the few things, if not the only thing, that stands between the conservative Roberts court and overruling Roe v. Wade. Hyatt made clear that the five conservative justices are perfectly content to overrule a precedent merely because they disagree with it. That should raise alarm bells about Roe, particularly as states enact draconian restrictions on abortion.

I agree with Litman and Breyer: the Roe decision is highly insecure with the five Republican justices that form the court’s majority. Reversing Roe would have cataclysmic effects on women’s reproductive rights in much of the country. For evangelicals and others who would like to put women back in their places (circa the 1950s, the ‘Again’ in Trump’s MAGA), erasing Roe would be a giant step in that direction.

But – without diminishing the repercussions for women – reversing Roe is only the tip of the iceberg.

Because Roe was so fundamentally consequential and, as a major driver of Republican votes, continues to be so consequential, it is often a focus of discussions about the Supreme Court. But with the focus on Roe, there may be a significant failure to appreciate how broad and comprehensive the conservative legal movement’s attack on settled law has become.

California cautionary tale circa 1986

In an illustrative case in 1986, California voters recalled Chief Justice Rose Bird and two associate justices of the State Supreme Court. Voter anger over the death penalty – Bird and company had overturned more than 60 death penalty verdicts, while upholding none – powered the successful campaign. But the campaign was lavishly funded by agribusiness, the banking industry, and other special interests who sought to squelch the most pro-worker, pro-consumer high court in the country. It worked. The court, after the recall, became much more attuned to the interests of business and corporations.

The controversy over abortion has – for decades – been the high profile campaign issue that the death penalty was in California thirty years ago. But now, as then, that’s hardly all that is at stake. The bulk of the GOP donor class is more intent on quashing regulation, lowering tax rates, suppressing worker rights, and keeping consumers at bay, than reversing Roe. They are seeking a compliant federal bench. Right to life vs. right to choose is a more salient issue for most voters, than (for instance) rulemaking and enforcement at the Consumer Financial Protection Bureau, so Roe has been the focus of debate about the courts.

Movement conservatives shun conservative legal principles

In the Hyatt case, like Heller, the 5-4 court majority did not rely on conservative legal principles, or a close reading of the Constitution, to arrive at its decision.

Breyer’s dissent criticizes the majority’s assertion that the Constitution changed, in a basic way, the nature of state immunity. “The most obvious problem with this argument is that no provision of the Constitution gives States absolute immunity in each other’s courts.”  He continues, observing the vague conservative appeals to what is “implicit” in the Constitution, “embedded … within the constitutional design,” and reflected in “the plan of the Convention.” But – Breyer notes – concepts like these are “highly abstract and difficult to apply,” “invite differing interpretations,” and “suffer the additional disadvantage that they do not actually appear anywhere in the Constitution.”

At any rate, I can find nothing in the “plan of the Convention” or elsewhere to suggest that the Constitution converted what had been the customary practice of extending immunity by consent into an absolute federal requirement that no State could withdraw. None of the majority’s arguments indicates that the Constitution accomplished any such transformation.

In other words, there is no convincing path from textualism or originalism – the conservatives’ purported means of interpreting the Constitution – to the conclusions the majority reaches.

Breyer, like Stevens, then presses his argument about stare decisis (a conservative legal principle virtually by definition): unless there is a compelling reason to overturn a decision, then jurists should refrain from doing so. “While reasonable jurists might disagree about whether Hall was correct, that very fact—that Hall is not obviously wrong—shows that today’s majority is obviously wrong to overrule it.”

And Justice Breyer makes clear that his concern is much broader than this single case. It is one thing to reverse a case because it proved to be impractical, legally obsolete, or when changing facts have made it impossible to apply or justify the old rule. But:

It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.

Constitutional conservatism – divinely inspired traditional culture

In 2014, Ed Kilgore expressed concern at the Republican Party’s “hellish momentum” toward increasingly extreme positions, as ‘establishment’ Republicans adopted the views of the Tea Party. “There’s remarkable near-unanimity in favor of hard-core positions on fiscal matters, the economy, cultural issues, and immigration–and above all a violent resistance to the idea that government can play a positive role in national life other than at the Pentagon.”

And he specifically mentioned the conservative movement’s embrace of “constitutional conservatism.”

… I do worry that the still-emerging ideology of “constitutional conservatism” is something new and dangerous, at least in its growing respectability. It’s always been there in the background, among the Birchers and in the Christian Right, and as an emotional and intellectual force within Movement Conservatism. It basically holds that a governing model of strictly limited (domestic) government that is at the same time devoted to the preservation of “traditional culture” is the only legitimate governing model for this country, now and forever, via the divinely inspired agency of the Founders. That means democratic elections, the will of the majority, the need to take collective action to meet big national challenges, the rights of women and minorities, the empirical data on what works and what doesn’t–all of those considerations and more are so much satanic or “foreign” delusions that can and must be swept aside in the pursuit of a Righteous and Exceptional America. … Some of the moneyed interests bankrolling the GOP and the conservative movement probably just view all the God and Founders talk as a shiny bauble with which to fool the rubes, but others–notably the Kochs–seem to have embraced it as a vehicle for permanent domination of American politics.

A very conservative, aggressively activist Supreme Court

On July 2, 2018 Erwin Chemerinsky, Dean of the UC Berkeley School of Law, in a more scholarly analysis of the Supreme Court (following the 2017-2018 term), focused on the activism of the conservative majority and its fealty to the agenda of the Republican Party:

The just completed Supreme Court term will come to be regarded as the beginning of a new era in constitutional history: a time of a very activist Court that aggressively follows the conservative political agenda. This term was the most conservative since October 1935, when the Supreme Court repeatedly declared unconstitutional key New Deal laws. The 2017–2018 term was a year filled with cases of unusual importance, and the conservative position prevailed in almost every case.

…

What explains the decisions of October term 2017 is not any principle like judicial restraint or originalism, but simply the conservative values of the majority of the justices. The justices were adhering to the vision of the Republican platform. As Justice Kagan expressed in her powerful dissent in Janus v. American Federation, where the Court overruled a 40-year-old precedent and held that non-union members cannot be forced to pay the share of the union dues that support collective bargaining, the Court’s decision was rooted in neither precedent nor sense. The Court ruled for Janus “because it wanted to.”

The dean cites four cases from the Court’s last term decided 5-4 that “reflect a Court following the conservative political agenda, regardless of precedent or the usual conservative desire to adhere to the original understanding of the Constitution.” They are:

  • Janus v. American Federation (overturning a 41-year-old precedent  to end “fair share” contracts, which required employees at union shops, who declined to join the union, to pay a portion of union dues that covered collective-bargaining activities)
  • National Institute of Family and Life Advocates v. Becerra (striking down the California FACT Act, which ensured that religiously-affiliated crisis pregnancy centers, disguised as medical centers, provided women with complete information regarding their options – including access to reproductive health services)
  • Trump v. Hawaii (reversing an appellate court ruling that invalidated Trump’s travel ban)
  • Epic Systems v. Lewis (rejecting employees’ rights to class action suits or class arbitration, contrary to the 1935 National Labor Relations Act, which was upheld by SCOTUS in 1937)

Conservative dreams of a 21st century Lochner Era

For most of our history the Supreme Court has been a powerful conservative – anti-democratic (small ‘d’) – force to suppress change. (The Warren Court of the ’fifities and ’sixties was an anomaly, as was SCOTUS well into the ’seventies, when Roe v. Wade was decided.) During the Lochner Era (which scholars generally agree began by the last decade of the 19th century and ended in 1937), the Supreme Court struck down hundreds of federal, state, and local laws – deemed to interfere with “freedom of contract” /economic liberty /the free market – enacted to protect workers and consumers.

Lochner v. New York (the case that gave the Lochner Era its name) struck down as unconstitutional a labor law that limited bakery workers’ hours to 10 hours a day and 60 hours a week.  During this era, the Court struck down child labor laws, minimum wage laws, bans on “yellow dog” contracts, other laws to assist in union-organizing, and legislation to regulate industry, and – of course – significant New Deal measures introduced by Franklin Delano Roosevelt in his first term as president.

Chemerinsky predicts that the activist justices that form the Court’s majority – “whose jurisprudence is based on the Republican platform” – will vote to overrule:

  • Roe v. Wade,
  • affirmative action, and
  • the exclusionary rule when police violate a suspect’s Constitutional rights.

He mentions the likely suppression of LGBT rights and rejection of equal rights challenges to partisan gerrymandering as well.

Chemerinsky doesn’t venture a prediction about decades of rulings since the New Deal permitting the regulation of business. But a number of libertarian legal scholars and Senator Rand Paul have argued that Lochner v. New York was correctly decided, because it freed business from the regulatory state.  

Liberals may think that the Roberts Court is already too willing to strike down laws and regulations — for instance, overturning campaign finance restrictions and part of Obamacare. But Paul wants the justices to go much further. He sharply criticized Chief Justice John Roberts for failing to overturn the full health law, saying, “Justice Roberts laid down the gauntlet and said judicial restraint means the majority can do whatever they want, basically.”

The immediate future of the Supreme Court – and of U.S. District and Circuit Courts – will more closely resemble the Court of the Lochner Era, than the Warren Court (and several that followed closely behind, when Republican-appointed justices – Stevens, Souter, Powell, O’Connor, and Kennedy – at least occasionally sided with the liberals). The authority of many federal agencies that make and enforce rules – the Environmental  Protection Agency, the Federal Communications Commission, the Federal Trade Commission, the Security and Exchange Commission, the Consumer Financial Protection Bureau, the Federal Election Commission … to list only a handful – may be challenged by an activist Supreme Court majority. We will be living a nightmare for years to come.

(Photo: wikipedia.)

Off the Rails, Republicans

Republicans have become as thoroughly shameless as the President they defend

As the Washington Post headline reminds us, the lack of shame confers political advantage. Donald Trump is shameless. Republicans’ defense of Trump – of his assault on truth, the rule of law, and institutional safeguards that preserve our democracy – is not possible without shedding all sense of shame.

In 2015 Jack Shafer of Politico, analyzing Trump’s “ability to wipe yesterday’s slate clean but suffer little political damage,” observed, “You can’t shame a shameless man.” In 2017, Jack Goldsmith of the Atlantic wrote, “A corollary to Trump’s shamelessness is that he often doesn’t seek to hide or even spin his norm-breaking.” The Republican Party circa 2019, the party of Trump, is all-in with the shameless trashing of democratic norms.

After delivery of a searing report by Robert Mueller (a man with a sterling career of public service, from Marine Corps officer in Vietnam to Director of the FBI, whose integrity was accepted by both Republicans and Democrats in Washington) concluded, “The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion,” and “established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome,” Republicans (once the party of ‘law and order’ and of staunch opposition to U.S. adversaries abroad) are now undaunted by the spectacle of a lawless president elected with the help of Russia.

William Barr, the consensus view had it, was a well-regarded, old-school institutionalist returning to the Justice Department as he neared retirement. Certainly, he would be concerned with his reputation and place in history. He would step up to embrace the role of Attorney General of the United States at a time – with a president, hostile to the rule of law, who had attacked the FBI, the intelligence agencies, Justice Department, and even the courts – when the nation needed a reassuring presence. Didn’t happen. Barr chose another course.

Senate Majority Leader Mitch McConnell, ignoring a heretofore unimaginable number of contacts between Russian agents and Trump campaign operatives, and ten prima facie episodes of obstruction of justice by the President, declares, “Case closed. Case closed.” (McConnell, of course, may be the political archetype of the shameless partisan.)

Chairman Lindsay Graham of the Senate Judiciary Committee, once a Trump critic and a loud, proud defender of national security, is on the same page as McConnell. “The Mueller Report is over for me. Done.”

While Graham and McConnell feign an interest in repelling foreign interference in American elections, the President’s personal attorney, Rudy Giuliani, doesn’t bother. He publicly announced – never mind that he walked it back, a Giuliani mannerism: he has already signaled to our foreign foe what he wants – that he intended to press the Ukrainian government to open an investigation into a Democratic presidential contender:

“There’s nothing illegal about it,” he said. “Somebody could say it’s improper. And this isn’t foreign policy — I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop. And I’m going to give them reasons why they shouldn’t stop it because that information will be very, very helpful to my client, and may turn out to be helpful to my government.”

And this week, when information came to light that the Senate Intelligence Committee – which traditionally has functioned in a bipartisan way, because the nation’s security is not a partisan issue – has subpoenaed Donald J. Trump, Jr. to return as a witness (after apparent conflicts in his previous testimony with other witnesses and documented evidence, and DJTJ declined to return voluntarily), so the committee can clarify the role of Russia in the attack on our country, Chairman Richard Burr was pilloried by a host of his fellow Republicans in the Senate and the House. That doesn’t happen very often, but defense of Trump requires it. The mob included Senators Rand Paul, Tom Tillis, and John Cornyn, House Minority Leader Kevin McCarthy, and Chairman of the Freedom Caucus in the House, Mark Meadows.

When Trump’s campaign began, most Republican leaders kept their distance (and a modicum of self-respect). At the beginning of his presidency, Trump still faced occasional push-back from Congressional Republicans, among others, who valued their professional reputations. Post-Mueller, the Trumpification of the Republican Party is virtually complete.