Tag Archives: John Roberts

2020 General Election, Democracy, Donald Trump

Why we can’t count on the Voting Rights Act of 1965 to avert an electoral disaster in November 2020

The withdrawal of federal troops from the South in 1877 ushered in the Jim Crow era. Put into place state by state over several decades, Jim Crow imposed legally sanctioned segregation made possible by the disenfranchisement of Black Americans. C. Vann Woodward writes in The Strange Career of Jim Crow:

The effectiveness of disfranchisement is suggested by a comparison of the number of registered Negro voters in Louisiana in 1896, when there were 130,334 and in 1904, when there were 1,342. Between the two dates the literacy, property, and poll-tax qualifications were adopted. In 1896 Negro registrants were in a majority in twenty-six parishes—by 1900 in none.

In spite of the ultimate success of disfranchisement, the movement met with stout resistance and succeeded in some states by narrow margins or the use of fraud. In order to overcome the opposition and divert the suspicions of the poor and illiterate whites that they as well as the Negro were in danger of losing the franchise—a suspicion that often proved justified—the leaders of the movement resorted to an intensive propaganda of white supremacy, Negrophobia, and race chauvinism. Such a campaign preceded and accompanied disfranchisement in each state.

Jim Crow was not merely a Southern institution. It was an integral element in FDR’s Democratic coalition and served as scaffolding for Democratic majorities in Congress well into the 1960s, when Lyndon Johnson made the commitment to enact historical civil rights legislation (knowing full well that the Solid South would shift from Democratic to Republican).

Fifty-five years ago today, President Johnson signed the 1965 Voting Rights Act. John Lewis, whose recent passing has focused attention on voting rights, was present at the signing.

LBJ’s signature brought an abrupt end to a vile era in American history. In the view of the Department of Justice (circa June 2009), the law proved to be extraordinarily effective.

Soon after passage of the Voting Rights Act, federal examiners were conducting voter registration, and black voter registration began a sharp increase. The cumulative effect of the Supreme Court’s decisions, Congress’ enactment of voting rights legislation, and the ongoing efforts of concerned private citizens and the Department of Justice, has been to restore the right to vote guaranteed by the 14th and 15th Amendments. The Voting Rights Act itself has been called the single most effective piece of civil rights legislation ever passed by Congress.

That 2009 assessment (near the beginning of the Obama administration) looks somewhat dated now, in the second decade of the 21st century, as the United States Supreme Court – led by Chief Justice John Roberts, who has made a career out of battling the Voting Rights Act – has persistently chipped away at the right to vote in subsequent years.

In 2013 in Shelby County v. Holder, Roberts, writing for a 5-4 Republican majority of the Supreme Court, struck down the Justice Department’s authority to subject states and local governments with a history of discrimination in voting to “pre-clearance” requirements when changing voting laws and procedures. While the law still stands, the ruling stripped away the most effective means of enforcing it.

In his opinion, Roberts wrote that in the jurisdictions subject to pre-clearance since 1965, Black registration has increased substantially. “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”

Ruth Bader Ginsberg, in her dissent, replied: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Richard Hasen notes in Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy:

Justice Ginsburg was right that the law served as a deterrent and that bad behavior would quickly return upon its removal. Within hours of the Shelby County decision, Texas announced it would immediately enforce its law requiring those wanting to vote to provide one of a limited number of types of photographic identification. Student IDs were unacceptable, but concealed handgun permits were allowed.

Other states soon followed with a range of suppression measures targeting Democratic constituencies:

Closing polling places to create voting deserts. By election day in November 2018, the Leadership Conference Education Fund found that 1,688 polling places had been closed.

Cutting back on early voting. Although more than two-thirds of the states permit early voting, a number have implemented cutbacks. Governors, secretaries of state, and state legislatures are generally discreet about announcing their intent, but not always. North Carolina (in a court filing) acknowledged restricting Sunday voting because “[c]ounties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic.”

Fewer voting places and fewer days to vote results in longer lines in selected neighborhoods.

Wholesale purges of voting rolls. Between 2016 and 2018 more than 17 million names were removed from voting rolls nationwide. The Supreme Court has ensured that states have wide latitude to conduct such purges – even when there is evidence that lists of voters to be purged are riddled with errors.

Ari Berman comments (“Republicans Are Trying to Kick Thousands of Voters Off the Rolls During a Pandemic”):

There’s nothing inherently wrong with updating registration lists to remove the names of people who have become ineligible to vote. “We want election administrators to have the tools they need to make sure that the records are clean,” says the Brennan Center’s Pérez. But recent examples show that some purges mislabel thousands of eligible voters, disproportionately Democrats and people of color. 

The Chief Justice is often the swing vote on the Roberts Court, forming a majority with liberals on one case, then with conservatives on another. But on issues of voting rights, gerrymandering, and campaign finance – all central to the Republican Party’s electoral strategy as its voting base shrinks – Roberts almost invariably sides with the GOP.

Earlier in 2020, conservative majorities led by the Chief Justice have weighed in numerous times on voting rights:

In April the Court ruled 5-4 in favor of the Republican National Committee in blocking a lower court ruling that gave Wisconsin voters an extra six days to return ballots.

In July the Court reprised the Wisconsin decision with rulings in Alabama and Texas cases. The Alabama ruling carried with the same 5-4 majority, though there were no dissents to the Texas ruling.

Later in July the 5-4 conservative majority sided with Republican officials in Florida in upholding an appellate court ruling that blocked felons from voting if they could not afford to reimburse the state for court costs, just a poll taxes barred voters in the Jim Crow era.

LBJ’s signature on the Voting Rights Act transformed both of the country’s political parties. As white Southerners abandoned it, the Democratic Party became a highly diverse coalition, while the GOP, a half century later, is mostly white and led by a man who sees “very fine people” among white supremacists and neo-Nazis.

On Tuesday, Donald Trump celebrated the vote by mail system in Florida (where Trump casts his mail-in ballots). The day before he blasted vote by mail in Nevada, complaining that it would make it “impossible for Republicans to win the state,” and promising litigation.

We can count on litigation aplenty. President Trump is hellbent on casting doubt on the integrity of the November election. Through tweets, interviews, and musings to the press, he throws up nonsense, conspiracy theories, and whiny accusations — all instances of Steven Bannon’s tactic for muddying the waters (“flooding the zone with shit,” in his words). All of this advances the politics of grievance and provides fodder for (heretofore) spurious legal claims.

It’s possible that the Supreme Court will decide the November election — as the it did in 2000 in Bush v. Gore — but if the decision turns on issues related to the Voting Rights Act, there is little doubt that John Roberts will be among the five conservative Republican men in the majority.

The surest way to prevent that: clear, decisive victories for Joe Biden at the ballot box in enough states to make the outcome indisputable.

(Image of President Johnson, at the signing ceremony of the Voting Rights Act, with Martin Luther King Jr.: LBJ Presidential Library.)

Democracy, Donald Trump, Off the Rails

Donald Trump, with help from John Yoo, finds “powers that nobody thought the president had”

We’re signing a health care plan within two weeks, a full and complete health care plan that the Supreme Court decision on DACA gave me the right to do. So we’re going to solve — we’re going to sign an immigration plan, a health care plan, and various other plans. And nobody will have done what I’m doing in the next four weeks. The Supreme Court gave the president of the United States powers that nobody thought the president had, by approving, by doing what they did — their decision on DACA. And DACA’s going to be taken care of also. But we’re getting rid of it because we’re going to replace it with something much better. What we got rid of already, which was most of Obamacare, the individual mandate. And that I’ve already won on. And we won also on the Supreme Court. But the decision by the Supreme Court on DACA allows me to do things on immigration, on health care, on other things that we’ve never done before. And you’re going to find it to be a very exciting two weeks. — Donald Trump in an interview with Chris Wallace

When I listened to this interview today, I was baffled by the claim of “powers that nobody thought the president had.” Wallace apparently didn’t know what to make of it either, since he jumped to a question about Mary Trump’s book.

Today, a report by Axios (“Scoop: Trump’s license to skirt the law”) provides the context, an article by John Yoo (the man who defended waterboarding as a national policy, even if it violated federal statutes) in National Review (“How the Supreme Court’s DACA Decision Harms the Constitution, the Presidency, Congress, and the Country”).

The article offers Yoo’s reasoning in the first three sentences:

Suppose President Donald Trump decided to create a nationwide right to carry guns openly. He could declare that he would not enforce federal firearms laws, and that a new “Trump permit” would free any holder of state and local gun-control restrictions.

Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two. [Emphasis added.]

Yoo finds justification for this interpretation within the 5-4 opinion written by the Chief Justice (with the 4 liberals concurring). As Yoo puts it (quoting from the text of the opinion):

“Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients,” Roberts found, DACA “could not be rescinded in full without any consideration whatsoever of a” non-deportation policy other than on the ground of its illegality.

According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult — especially for their successors.

Yoo criticizes this decision in National Review, because he believes it allows a president to unduly tie the hands of his successors. (I’m not an attorney, so I may be missing something in thinking that Yoo finds torture at the hands of the federal government more acceptable than deferring deportations of immigrants whose parents brought them into the country as children without legal documentation.)

Regardless of Yoo’s objections, the White House sees a green light for expanding presidential power beyond even the creative imagination (prior to Roberts’ DACA decision) of Bill Barr’s justice department.

This is scary stuff for anyone who has had occasion to fear Trump’s authoritarian impulses.

I’ve concluded a couple of posts recently with warnings (regarding a raging COVID-19) that things will get worse. With Trump in a rage about his polling, the economy, and an out of control epidemic he has tried his best to ignore, we can count on this: Things will get worse — much worse — before January 20, 2021.

(Image: King George III via wikipedia.)

The Way the World Goes 'Round

Round and round: The president, the governor, voting rights, and the Grim Reaper

1.  Speech acts

In 1974, John Searle made an observation in a classroom about this sentence: ‘This room would look good in blue.’ He noted that the import of the sentence could differ from speaker to speaker. So, for instance, the words constituted a simple declarative sentence when spoken by a casual observer to a friend, while the same sentence could function as an imperative – Paint it blue – if spoken by the homeowner to a contractor.

I was reminded of this lecture when reading Bonnie Honig’s comments about an exchange on Fox News (which I quoted yesterday):

Jesse Watters: The President’s spitballing and he’s asking questions. ‘Would it be possible to maybe target the virus through a cure using certain ingredients and using sunlight?‘ You didn’t believe the President was putting anyone in danger, did you?

Dr. Deborah Birx: No. He gets new information. He likes to talk that through out loud. And really have that dialogue. And so that’s what dialogue he was having. I think he just saw the information at the time, immediately before the press conference. And he was still digesting that information.

It was easy enough to take the good doctor’s suggestion – that Trump was just digesting the information when he commented on bleach and light – at face value. But, Honig illustrates why this is wrong.

Trump isn’t just riffing aloud. He is demanding public praise for his intelligence from a distinguished authority whose job depends on Trump’s goodwill. Honig (“Spitballing in a pandemic”) [emphasis added]:

Dr. Birx … tried to explain it all away on Fox News, and what she said rings true: “When he gets new information he likes to talk that through out loud and really have that dialogue and so that’s what dialogue he’s having.” The issue, she implies, is not the musing: that is his process. The issue is that it happened in the wrong place at the wrong time.

But Trump knew that. He mused publicly because he hoped to give us all a peek behind the scenes. He has ideas and his people take them seriously! See? And who knows? He himself might come up with the cure! 

. . .

What we saw on Thursday in the briefing room is what is going on behind the scenes: his advisors indulge Trump’s bright ideas and take them seriously. “I just had a thought. Look into it.” He did not say it like it was an order. On Thursday, his tone was inveigling, whispery. He was impersonating what he imagines it looks like to have an idea. Buttressed by power and smothered in noblesse oblige, however, his “thought” was really a command: act like it’s a good idea. — Yessir, we will.

2.  That’s bracing

In California, declaration of an emergency results in an extraordinarily broad expansion of a governor’s power, in this case, Gavin Newsom’s:

States are afforded broad authority under constitutional law, which grants them “police power” to improve the health, safety, morals and general welfare of the population. Under California’s Emergency Services Act, the governor’s powers are virtually unlimited — he can suspend any law or regulation during a state of emergency.

3. Voting rights

On April 12, I referenced election expert Richard Hasen’s fear that Republican-controlled state legislatures, in purple states (or red ones that could flip to Biden), could cancel the November 3 election and allocate the state’s electoral votes to Trump. The U.S. Supreme Court noted in Bush v. Gore that state legislatures possess this authority under the Constitution.

Last week, in a review of Joe Biden’s warning that Trump could try to cancel the election, Ed Kilgore noted that in fact the Florida legislature – in 2000 (when Bush v. Gore was before SCOTUS) – filed a brief asserting the authority to throw out the election results and direct all of the state’s electoral votes to Bush. The five Republican men who comprised the Court’s 5-4 majority in the case rendered this move unnecessary to give the election to George W. Bush.

In the aftermath of the Court’s unsigned 5-4 ruling overturning a lower court’s extension of time to count ballots in Wisconsin’s recent election in the midst of the coronavirus pandemic, Nina Totenberg commented that “in a voting case, Chief Justice Roberts assuredly would have played a pivotal role.” Roberts has been deeply involved in voting rights cases dating to 1982, when as a staffer to Ronald Reagan, he worked (unsuccessfully) to narrow the 1965 Voting Rights Act. Later, as Chief Justice, he succeeded in gutting provisions of the law. Regarding the Wisconsin case, she observed:

So, it was no surprise when the conservative majority refused to make even a modest accommodation to the pandemic. What was surprising was the tone of the opinion. Critics of the opinion, including some Roberts defenders, called the language “callous,” “cynical” and “unfortunate.”

4. The Grim Reaper aka the Majority Leader of the United States Senate

Mitch McConnell was on conservative talk radio last week. He made news by suggesting that he thought, rather than provide funding for states facing unprecedented financial burdens fighting the coronavirus, that he would prefer to see the states declare bankruptcy.

I would certainly be in favor of allowing states to use the bankruptcy route. It saves some cities. And there’s no good reason for it not to be available. My guess is their first choice would be for the federal government to borrow money from future generations to send it down to them now so they don’t have to do that. That’s not something I’m going to be in favor of.

And:

“I said yesterday we’re going to push the pause button here, because I think this whole business of additional assistance for state and local governments needs to be thoroughly evaluated. You raised yourself the important issue of what states have done, many of them have done to themselves with their pension programs. There’s not going to be any desire on the Republican side to bail out state pensions by borrowing money from future generations.” 

In a press release, McConnell highlighted his comments about state bankruptcy with the heading, “On Stopping Blue State Bailouts.”

Governor Andrew Cuomo responded:

Let me go back to my self-proclaimed Grim Reaper, Senator McConnell for another second. He represents the State of Kentucky, okay? When it comes to fairness, New York State puts much more money into the federal pot than it takes out, okay. At the end of the year, we put in $116 billion more than we take out, okay? His state, the State of Kentucky, takes out 148 billion more than they put in, okay.

… Senator McConnell, who is getting bailed out here? It’s your state that is living on the money that we generate. Your state is getting bailed out, not my state.

Cuomo also took McConnell to task for the rawest kind of partisanship.

Don’t help New York State because it is a Democratic state. How ugly a thought. I mean just think of – just think of what he’s saying. People died: 15,000 people died in New York. But they were predominantly Democrats, so why should we help them? I mean, for crying out loud, if there was ever a time for you to put aside, for you to put aside your pettiness and your partisanship and this political lens that you see the world through — Democrat or Republican, and we help Republicans but we don’t help Democrats — that’s not who we are. That’s just now who we are as a people. I mean, if there’s ever a time for humanity and decency, now is the time.

As I have observed repeatedly in this blog, Mitch McConnell’s M.O. is to exacerbate partisanship at every opportunity. Humanity? Decency? Not among McConnell’s priorities.

I learned from David Frum that Republican proposals to encourage state bankruptcies date back more than a decade. The idea, which Frum sketches, is this: rich blue states impose higher taxes, and spend more on social programs (including, incidentally, generous public employee pensions), than Republicans like. Yet many wealthy Republicans – the GOP donor class – live in blue states. Moreover, Mitch McConnell’s biggest donors are not from Kentucky: they too live, work, and pay taxes in blue states. If Congress (when Republicans are in charge), and the federal courts (which are being stacked with right wing ideologues), could impose a bankruptcy process on the blue states, then those rich Republicans living in California, New York, and other wealth-generating states where Democrats reliably get elected, could see their taxes go down.

And if that meant that public employee pensions could be gutted, then Republicans would be smiting the most well-organized Democratic constituency – public employee unions – in the country.

Governor Andrew Cuomo’s comments (characterizing McConnell’s suggestion as “one of the saddest, really dumb ideas of all time”), asserted that state bankruptcies would wreak havoc on markets worldwide, wrecking the economy. Actually not (as Frum explains): Republican proposals to permit state bankruptcies would ensure that big money interests get paid; it’s the labor unions that would lose. And Democrats.

Frum observes:

A federal bankruptcy process for state finances could thus enable wealthy individuals and interest groups in rich states to leverage their clout in the anti-majoritarian federal system to reverse political defeats in the more majoritarian political systems of big, rich states like California, New York, and Illinois.

In other words, in a country where more than half the population only elects 18 of 100 Senators; where the Electoral College reflects this disparity; and where boundaries for Congressional Districts (because of demographics related to cities and state of the art gerrymandering) make Democratic votes less potent than Republican votes, Democratic majorities may still rule within the states. But If Republicans in Washington could change federal law (and shape federal court rulings) as proposed, then a national minority could crush majorities within the big blue states. California, New York, Illinois, and others would cease to enjoy majority rule.

Yet another Republican plan for extinguishing responsive democratic government. Here’s hoping Mitch McConnell is deposed as Majority Leader after November 3.

Democracy, Republicans

Senator Sheldon Whitehouse lobs a warning to SCOTUS’s Republican men

Earlier this month Senator Sheldon Whitehouse and four of his Democratic colleagues filed a remarkable amicus curiae brief in a gun control case before the Supreme Court. The message to the five men appointed by Republican presidents to the high court was direct and unflattering.

The conclusion – after an amply documented, well focused critique of the court and of the deep-pocketed interests whose dark money has shaped the court: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

A May 2019 Quinnipiac poll cited in the brief documents these public attitudes. The poll reported that 55 percent of Americans believe the Supreme Court is motivated mainly by politics and a majority believes that “Supreme Court should be restructured in order to reduce the influence of politics.” The reference to restructuring, of course, evokes Franklin Roosevelt’s proposal to pack the court.

Whatever the GOP stalwarts on the Court make of this, Republican commentators have reacted predictably. David French wrote in National Review, “It is easily the most malicious Supreme Court brief I’ve ever seen.” The Wall St. Journal described it as “an enemy of the court brief.” Ted Cruz tweeted, “Extremely concerning to see Senate Democrats threaten federal judges like this. If this isn’t an improper attempt to influence – read: OBSTRUCT – the highest court in the land, then I don’t know what is.”  

And let’s not leave out Lindsay Graham: “Packing the Supreme Court… Bad idea. Liberal dream. Trump’s 3rd term is looking better and better!”

On the other side of the aisle, Ian Milhiser (whose book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, reflects his view of the court’s malign influence throughout most of U.S. history) agreed that the brief was hardly typical (though he didn’t get bent out of shape about it):

A tone of ritualized obsequiousness pervades most briefs filed in the Supreme Court of the United States. Judges are powerful and at the Supreme Court level, unaccountable. They wield enormous, arbitrary power not just over litigants but over the lawyers who appear in their courtrooms. So when most lawyers speak to a court, they speak with a painful awareness of the arbitrary control separating the bar from the bench.

Sen. Sheldon Whitehouse (D-RI), however, is not most lawyers.

Senator Whitehouse with Senators Mazie Hirono, Richard Blumenthal, Dick Durbin, and Kirsten Gillibrand are unsparing in their brief, which opposes standing for the plaintiffs in the case (New York State Rifle and Pistol Association Inc v. City of New York, New York). Straightforwardly, since the gun group objected to a New York City ban on transporting guns, and the city has repealed the law, the case would appear to be moot. But the court rejected a petition from NYC to declare the case moot.

The brief portrays the petitioners as deep-pocketed special interests openly promoting a political project:

Confident that a Court majority assures their success, petitioners laid their cards on the table: “The project this Court began in Heller and McDonald cannot end with those precedents,” petitioners submit.

The brief notes that, at this stage, there is no live legal question before the court, no grounds for standing, but that gun rights advocates believe that, with Trump’s appointees on the bench, they are headed toward a victory.

Noting that this “effort did not emerge in a vacuum,” the brief documents the NRA’s $1.2 million television campaign in support of Brett Kavanaugh’s nomination to the court (because he would “break the tie” in Second Amendment cases) and the campaign against a Democratic Senator who opposed the nomination.

Further, a Federalist Society publication suggested that “the logjam has been cleared” with Justice Kavanaugh replacing Kennedy on the court. The brief continued, “This commentary is of particular note because it was published by an organization that has such a prominent role in the Republican Party’s efforts to shape the federal judiciary in favor of donor interests,” and references the Executive Vice President of the Federalist Society, Leonard Leo (whom Politico describes as “the quiet architect of a pivotal shift to the right throughout the federal judiciary”), linking him to “a million-dollar contribution to the NRA’s lobbying arm, and to a $250 million network largely funded by anonymous donors to promote right-wing causes and judicial nominees.”

The brief observes, “The Society counts over eighty-six percent of Trump administration nominees to circuit courts of appeal and to this Court as active members,” and comments on the “massive political spending,” largely from dark money, that funded this effort. In a footnote, the brief quotes former White House counsel Donald McGahn (of Mueller report fame):

Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges. That is completely false. I’ve been a member of the Federalist Society since law school—still am. So, frankly, it seems like it’s been insourced.

“The influence effort directed at this Court has been industrialized. In this particular ‘project’ to rewrite and expand the Second Amendment, petitioners are flanked by an army of nearly sixty amici.” But, the brief argues, since the donors are hidden from view, it is impossible to know how widespread the support is. “Were there … transparency, this amicus army would likely be revealed as more akin to marionettes controlled by a puppetmaster than to a groundswell of support rallying to a cause.”

In contrast:

Out in the real world, Americans are murdered each day with firearms in classrooms or movie theaters or churches or city streets, and a generation of preschoolers is being trained in active-shooter survival drills. In the cloistered confines of this Court, and notwithstanding the public imperatives of these massacres, the NRA and its allies brashly presume, in word and deed, that they have a friendly audience for their “project.”

Conservatives reject principles, embrace activism

Since the law the plaintiffs objected to has been struck down, the case – by all appearances – is moot.  The brief quotes both John Jay, the court’s first chief justice, and John Roberts, the current chief justice, to the same effect: the judiciary was not established to settle hypothetical disagreements. Benjamin Cardozo (former SCOTUS justice nominated by Herbert Hoover) is invoked, rejecting the notion that a judge is “a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness,” and, again, Roberts, cautioning that the Supreme Court “is not a legislature,” though “It can be tempting for judges to confuse [their] own preferences with the requirements of the law.”

Be that as it may, recently – as the Federalist Society project has found greater success – Republicans on the bench have begun to abandon conservative judicial principles: principles that they have embraced in the past. When Clarence Thomas sought confirmation before the Senate Judiciary Committee in 1991, he said that “you cannot simply, because you have the votes, begin to change the rules, to change precedent.” That was then. This is now (Thomas in 2019): “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”

The pattern of outcomes is striking; and so is the frequency with which these 5-4 majorities disregarded “conservative” judicial principles like judicial restraint, originalism, stare decisis, and even federalism.

The brief cites this record: From the term beginning October 2005 through the term beginning October 2017, the Supreme Court issued 78 5-4 (or 5-3) opinions in which the majority consisted solely of Republican-appointed justices. “In 73 of these 5-4 decisions, the cases concerned interests important to the big funders, corporate influencers, and political base of the Republican Party.” In every case, the justices ruled in favor of the Republican Party’s interests.

With bare partisan majorities, the Court has influenced sensitive areas like voting rights, partisan gerrymandering, dark money, union power, regulation of pollution, corporate liability, and access to federal court, particularly regarding civil rights and discrimination in the workplace. Every single time, the corporate and Republican political interests prevailed.

The pattern, and the abandonment of conservative legal principles in favor of partisan activism (which I’ve documented in previous posts), is clear. Add the Federalist Society’s decades-long campaign and the unprecedented refusal of the U.S. Senate – once Republicans gained control of the chamber – to confirm Barack Obama’s appellate court nominees, to hold hearings on Merrick Garland’s nomination, to adhere to the ‘blue slip’ rule, and so on. And then add Brett Kavanaugh’s unhinged, aggrieved, conspiratorial hate-fest directed at the Clintons and the Democratic Party during his confirmation hearings, and we begin to hear talk of restructuring the court.

Fair enough. So, why did Whitehouse and company file this brief? The Senator rejects the accusation that he was threatening the court.

“In the same way that you might warn somebody walking out on thin ice — ‘Hey, the ice is thin out there, you want to be careful, maybe you want to come in’ — I think that was the motivation for filing this brief.”

But what a warning. “This filing is a badass move by these Senate Democrats. The Republican justices on the Supreme Court should be on notice that the public is quickly losing faith in the court as a legitimate institution.” — Brian Fallon, Executive Director of Demand Justice

Lawrence Tribe wasn’t as enthusiastic about putting the Republican men on notice: “I agree the Court should drop this case as moot and am usually a fan of @SenWhitehouse but I think this brief was inappropriately — and stupidly— threatening. If anything is calculated to get the Court’s back up, it’s a brief like this. Really bad move.”

Professor Tribe made a career out of shaping arguments to appeal to one or another of a series of Republican-appointed swing justices, so – okay – he wouldn’t have written this. Presumably he would have been aiming to influence the current swing justice, John Roberts, though he is much further to the right than swing justices in previous decades.

So, should Whitehouse have focused narrowly on standing, rather than unleashing his grand critique? Should he, if he insisted on raising the broad issues in the brief, have tread more gently? Well, I suppose so, if his intent were to influence John Roberts — that is, unless Whitehouse concluded that bluntness, or (contra his denial) a threat, or perhaps authenticity conveyed through a more direct message, would be more effective at influencing the chief justice.

Or this may be a case of senators being senators, of Whitehouse, Hirono, Blumenthal, Durbin, and Gillibrand just sounding off because they’ve had enough of SCOTUS’s Republican men, and of McConnell and Graham and Cruz and Trump … They might be justified in thinking: Why should Democratic Senators feel constrained about offending the shameless partisans in Donald Trump’s corner? (It’s a different era, Professor Tribe. Those old tricks have seen their day.)

Jonathan Chait writes today about the book American Carnage:

The most interesting revelation in Alberta’s book may be the degree to which Republicans convinced themselves of their own lofty rhetoric. When he predicted that he and his allies would resist Trump’s authoritarianism, thereby proving that their opposition to Obama was genuine, Mulvaney clearly believed it. And when Ted Cruz told his aides during the primaries, “History isn’t kind to the man who holds Mussolini’s jacket,” he surely had no idea what lay in store for him. If Trump has accomplished anything, it is to force Republicans to see their party and themselves a little more clearly.

Well, maybe. If so, then perhaps that’s what’s behind the Whitehouse brief. The five Republican men, if they read the brief, may be ‘forced’ to see themselves a little more clearly. Could that be the point?

Here’s another possibility. Dissenting justices don’t write their opinions to change the minds of sitting justices in the majority, so much as they write to influence future justices. Their hope is that their views will capture majorities at a time that has yet to come.

This amicus brief may be speaking to future justices, to law professors and students, to Democratic officeholders and activists, and perhaps to the four women and men on the court appointed by Democratic presidents.

This may be a shout out to allies. It may serve to lay the groundwork for future decisions and future campaigns.

It cheered me. I’m sure it cheered others. That may be reason enough to have filed it.

(Image: wikipedia.)

Democracy, Short & Sweet ... Short & Sour, Tribalism

Have we seen the last “vivid display of willed gullibility” from John Roberts?

Quote of the day on the Chief Justice’s decision “in at least one case, that he would no longer play rubber-stamp judge …”:

“I understand that Roberts is not a secret moderate. He’s a lifelong conservative with far-reaching legal goals of rolling back civil-rights, economic, and environmental gains. But if the chief justice is sick and tired of being treated like Francisco’s idiot intern, the possible ramifications are huge. If he were to begin taking account of facts—taking this administration at its word when it tells the world of its plans to punish Muslims, torment immigrants, disfranchise its opponents, cripple Congress, and silence its critics—then there may be more times when the chief says, in so many words: Stop lying. Do the job right or give it to someone who can.” – Garrett Epps

Well, this could happen.

(Image of Roberts from wikipedia.)