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Jack Smith’s Way Forward

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I’m going to write a long post on how John Roberts made elections subservient to the President.

But first, I want to lay out a way forward for Jack Smith. I’ll return to a way forward for Biden.

First: SCOTUS has remanded this case to Judge Chutkan to determine which of the charges can be sustained as unofficial acts. As I’ll lay out, I think they’ve put their thumb on the scale that none of them can be. But by all means, she is now required to spend the next four months figuring that out.

So if I’m Jack Smith, I ask her to block out her time for the foreseeable future to do just that.

Because the President cannot be prosecuted for anything considered a core Presidential act, like bribing Roger Stone with pardons, Jack Smith should issue a report of what Trump did with his core official acts.

Nothing in this opinion prohibits Jack Smith from prosecuting everyone else (save Trump’s closest aides and Jeffrey Clark). So Jack Smith should roll out any and all indictments for Trump’s associates that would otherwise have been introduced in his case in chief.

SCOTUS’ Republicans Allow Presidents to Use SEAL Team 6 To Execute Their Opponents

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Until this morning, it was a joke that if a President sent out SEAL Team Six to take out, say, their opponent, their Vice President, or Sammy Alito as an official act, they would be immune from prosecution.

But the Republicans on SCOTUS have just given Presidents presumptive immunity for official acts.

I’ll post updates. But the effect of the opinion is to throw out the entirety of the charges involving Jeffrey Clark, and remand for further consideration on Trump’s pressure on Mike Pence and his public comments. It also prohibits the government from using Trump’s communications with his advisors. That guts the case.

From Sotomayor’s dissent:

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Supreme Court Makes 18 USC 1512 a Paperwork Crime, But Does Not Address Corrupt Purpose

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The most important SCOTUS ruling today overturned Chevron, basically giving a bunch of lifetime appointed judges who just legalized accepting gratuities for themselves power to veto regulations imposed by Executive Agencies.

But others are more expert on that opinion, so I’ll let them explain how it’ll change life in the United States for decades to come.

I am an expert on the application of 18 USC 1512(c)(2) to January 6, and so can explain the significance of Justice Roberts’ ruling that it must involve making documents unavailable to an official proceeding.

Before the ruling, I had argued the court could do one of four things:

  1. Leave the application in place
  2. Overturn its application to January 6 altogether (effectively, ruling that the vote certification was no an official proceeding)
  3. Limit its application to paperwork crimes
  4. Address the meaning of “corrupt purpose”

The court opted for option 3:

To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so. See supra, at 9. The judgment of the D. C. Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. On remand, the D. C. Circuit may assess the sufficiency of Count Three of Fischer’s indictment in light of our interpretation of Section 1512(c)(2).

This has the ability of overturning most, if not all, the obstruction convictions associated with January 6.

Or it may not.

Or it may not affect those who knew of the purpose of the vote certification.

After all, there was a set of January 6 defendants convicted of obstruction who knew not just that they were trying to prevent Congress from certifying Joe Biden as President, but who also knew the thing they were trying to prevent was the certification of Biden’s electoral certificates.

If DOJ can prove a given defendant knew the import of the certifications, they may preserve some of these prosecutions.

There’s even the possibility that DOJ can successfully argue that the Jan6ers were attempting to impair “witness” testimony of members of Congress or, more importantly, Mike Pence, by scaring the bejesus out of them.

Someone whose prosecution is far less likely to be affected by this ruling is Donald Trump. That’s because he had created a set of fraudulent certifications that he intended to use to either replace Joe Biden’s real electoral certifications, or at the very least, to stall the certification of them.

It goes back to the DC Circuit to decide.

Importantly, SCOTUS left the definition of “corrupt purpose” undecided, something else on which the DC Circuit has issued unstable opinions. A review of that definition could lead to a further narrowing of the application. But there, too, Donald Trump’s charges should remain, because his efforts to remain in power after being fired fit the definition of “corrupt purpose.” Or did, before SCOTUS started chipping away at corruption law.

Update: Justice Ketanji Brown Jackson’s concurrence notes that there were documents at the core of January 6: the electoral votes, and also notes that there may have been other attempted impairment.

In my view, the Court properly interprets §1512(c)(2) in the opinion it issues today. It also rightly vacates the judgment below and remands this case for further proceedings. Joseph Fischer was charged with violating §1512(c)(2) by corruptly obstructing “a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote.” App. 183. That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.

Update: This language from the syllabus should make it clear that Trump’s charges should remain unscathed and there may be other ways to sustain the charges against some of the existing defendants.

For example, it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence. Subsection (c)(2) also ensures that liability is still imposed for impairing the availability or integrity of other things used in an official proceeding beyond the “record[s], document[s], or other object[s]” enumerated in (c)(1), such as witness testimony or intangible information.

Trump’s Other Immunity Claim: Stealing Boxes and Boxes of Classified Documents

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Whatever else the SCOTUS grant of Trump’s immunity claim did, it provided the basis for scheduling clarity.

It seems likely SCOTUS has committed to deciding the immunity question by the end of term, in June.

That would present Tanya Chutkan with the decision of whether to try the January 6 case during the election season (it is her choice, not DOJ’s to make). She had been entertaining starting the trial in August, which would have bled into election season as it is, so she may decide to do this. If she does, it is unlikely a jury would reach a verdict before election day, but the trial would give voters opportunity to see the evidence before voting.

The decision to grant cert is as interesting for Trump’s other immunity claim — Trump’s even more frivolous claim that he can’t be prosecuted for stealing boxes and boxes of classified documents because his claimed decision to convert those government documents to his personal possession in violation of the Presidential Records Act is immune from prosecution, as well. I’ve seen some commentary that SCOTUS may have been trying to come up with a different solution but then decided to hear the case. If that’s true, the decision to hear the case came less than a week after Trump made that other claim of immunity, that he can steal classified documents with impunity. Who knows? It’s not before the court, but it may have affected their decision to hear the case.

The matter will be fully briefed by the time Jack Smith submits his brief to SCOTUS on April 8. So he can have two absurd claims of immunity to address, Trump’s claim he can steal the election with impunity, and Trump’s claim he can convert boxes and boxes of classified documents to do with as he pleases on the way out the door even if it violates the Presidential Records Act, a law passed specifically to apply to Presidents. One of the matters that had been hypothetical before the DC Circuit — that Trump might sell nuclear documents to our adversaries — has become concrete.

Given the question as posed by SCOTUS — Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? — I think SCOTUS may have been uncomfortable with the DC Circuit’s thin treatment of Trump’s argument that, without immunity, former Presidents could be prosecuted for things like approving the drone strike on Anwar al-Awlaki (note, when Trump raises this, he never mentions that he himself killed Awlaki’s daughter).

Former President Trump argues that criminal liability for former Presidents risks chilling Presidential action while in office and opening the floodgates to meritless and harassing prosecution. These risks do not overcome “the public interest in fair and accurate judicial proceedings,” which “is at its height in the criminal setting.” Vance, 140 S. Ct. at 2424.

Former President Trump first asserts that the prospect of potential post-Presidency criminal liability would inhibit a sitting President’s ability to act “fearlessly and impartially,” citing the “especially sensitive duties” of the President and the need for “bold and unhesitating action.”

There has to be something that distinguishes such actions from those charged against Trump. That something is likely the conversion of the Presidency to one’s own personal benefit. It’s not in the DC Circuit opinion and needs to be — all the more so given that, in Florida, Trump is claiming that he could legally simply convert boxes and boxes of classified documents to his personal property, even though the Presidential Records Act prohibits it.

It’s not in the DC Circuit opinion. But something like that has to be, some measure to distinguish the ordinary unlawful stuff Presidents are asked to authorize on behalf of the country and the venal stuff Trump did to benefit himself.

Tomorrow, Judge Cannon will hold a hearing to discuss how to schedule that trial. Her original schedule included six months of things after pretrial motions, which would put her schedule at September as well (though she’s obviously more likely to stall until after the election). But one thing she can expect is that, by June, Trump’s immunity claim will be resolved.

Update: Here’s the language from Trump’s brief that addresses this problem.

The panel opinion ignores the long history of real-world examples of Presidents engaging in actual behavior that political opponents viewed as egregious and “criminal.” Instead, keying on the Special Counsel’s arguments, the panel fretted about lurid hypotheticals that have never occurred in 234 years of history, almost certainly never will occur, and would virtually certainly result in impeachment and Senate conviction (thus authorizing criminal prosecution) if they did occur—such as a hypothetical President corruptly ordering the assassination of political rivals through “SEAL Team Six.” D.C. Cir. Oral Arg Tr. 10:19-21. Such hypotheticals provide fodder for histrionic media coverage, but they are a poor substitute for legal and historical analysis. Confronted with real-world hypotheticals—such as President Obama’s killing of U.S. citizens by drone strike—the Special Counsel conceded below that Presidential immunity from criminal prosecution for official acts likely exists and would apply, directly contradicting the “categorical,” App’x 20A, holdings to the contrary of both the appellate panel and the trial court. D.C. Cir. Oral Arg Tr. 49:18-22 (Special Counsel admitting that a “drone strike” where “civilians were killed … might be the kind of place in which the Court would properly recognize some kind of immunity”). Further, the logical presupposition of such speculative hypotheticals—i.e., that the Founders supposedly must have intended that no alleged Presidential misdeed could ever escape prosecution—is plainly incorrect and contradicts the basic premises of a system of separated powers. “While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.” Morrison, 487 U.S. at 710 (Scalia, J., dissenting).

Jack Smith’s response doesn’t really deal with this issue in depth.

7 A sufficient basis for resolving this case would be that, whatever the rule in other contexts not presented here, no immunity attaches to a President’s commission of federal crimes to subvert the electoral process. See Amici Br. of John Danforth et al., at 7. The court of appeals’ analysis was “specific” to the allegations that applicant conspired to “overturn federal election results and unlawfully overstay his Presidential term,” Appl. App. 31A, and a stay can be denied on that basis alone, leaving for another day whether any immunity from criminal prosecution should be recognized in any circumstances. See Gov’t C.A. Br. 45-49 (explaining that foreign affairs are not implicated in this case); cf. Nixon, 418 U.S. at 707, 710, 712 n.19 (reserving whether an absolute presidential-communications privilege might exist for military, diplomatic, or national security secrets).

SCOTUS Rushes to Grant Trump Protections After It Refused to Rush to Ensure Due Process

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Unsurprisingly, after declining to rush to make sure Trump got due process before a jury of his peers, SCOTUS granted cert to the appeal of Trump’s disqualification by Colorado.

The case will be heard on February 8.

Update: Rick Hasen, who is very smart on these issues, notes that SCOTUS did not hone the issues it will review.

I’m more surprised that the Court did not better focus the questions to be briefed. Trump’s question presented is a blob of a question on disqualification. The challengers to Trump had written 7 questions presented in the alternative. In the Colorado challenge, which does not seem to have been granted by this order, they raised three questions, which somewhat overlap with Trump’s claims.

This seems like it could be a free-for-all in arguments and briefing. I take the failure to hone it down due to lack of consensus on the court or time for there to be serious research on these issues.

Clarence Thomas’ Club Votes Against Democracy

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SCOTUS denied Jack Smith’s effort to get a SCOTUS review of Trump’s absolute immunity claim immediately.

SCOTUS will wait until after DC Circuit hears arguments on January 9, decides the issue, and then they’ll take it up at their leisure, when they’re not taking rich vacations with right wing donors.

This is the easiest of all decisions before SCOTUS, because by taking the case right away, they might make all their other decisions easier.

But instead, they’re stalling.

The Major Questions Metadoctrine and The Slaughterhouse Cases

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In my last post I show how US v. Cruikshank (1876) and The Slaughterhouse Cases (1873) affect our gun control crisis. In this post I look at the connection between The Slaughterhouse Cases and Biden v. Nebraska, the recent case striking down Biden’s student loan reduction plan.

The Slaughterhouse Cases

I discuss The Slaughterhouse Cases here. The Supreme Court could have decided them strictly on the basis of the police power. The appellant butchers argued that the untrammeled right to earn a living was a right protected by the Privileges or Immunities Clause of the 14th Amendment. That’s obviously not true. The Court later takes up the purposes of the Reconstruction Amendments, and there’s nothing to support the Appellants’ argument.

But Samuel Miller, who wrote the majority opinion, explains that he and the other members of the Court have thought it over, and “ we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that, we have neither the inclination nor the right to go.”

One of the advisory opinions that follow is that the Reconstruction Amendments were not intended to change the balance of powers between the federal and state governments. Miller justifies this by saying that if Congress wants to make an significant change the balance of powers between the states and the US, it has to do so in language acceptable to the Supreme Court.

Earlier in the opinion, MIller said that the Reconstruction Amendments were intended to insure that Black people had a full range of rights, just like White people. Section 5 gives Congress the power to enact laws to secure that right. So at the very least, the Reconstruction Amendments change the relations between state and US governments enough to permit the US to protect the rights of Black people. It’s hard to imagine clearer language, and Miller doesn’t even hint at one.

Furthermore, by the time of The Slaughterhouse Cases Congress had enacted two civil rights laws and three enforcement acts. This effectively is a declaration of Congress’ understanding of its power, and that of the President. Miller ignores the views of the other two branches. Only the opinion of five members of the Supreme Court counts. The Supreme Court is the unelected final authority in our democracy.

So, we have three points from The Slaughterhouse Cases:

1. If the Supreme Court majority wants to issue a ruling in a case, it will do so, regardless of precedents it might have established.

2. If Congress wants to accomplish a major change in our government it must figure out some language that even the Supreme Court is afraid to reject, but likely that’s impossible.

3. SCOTUS is supreme; it ignores the other two branches if it chooses.

Biden v. Nebraska

Majority Opinion. John Roberts’ majority opinion addresses the standing of the Appellants. Most of them don’t have standing, but no matter, because Roberts asserts that Missouri does and one is plenty. The basis for Missouri’s standing is that it had created MOHELA, an independent nonprofit governmental corporation, which owns and services student loans. MOHELA refused to participate in the lawsuit (I wonder why) but the Missouri AG claims that Missouri can sue in its place. He says MOHELA would lose an estimated $44 million in fees for loan servicing. None of that would ever go to Missouri, ever, but so what?

Roberts and the Fox News Six say MOHELA is an “instrumentality” of Missouri, the instrumentality might lose money which is an injury sufficient for standing, and that’s good enough. What he means is that standing is available because he wants to rule on the merits. Just like in The Slaughterhouse Cases.

In her dissent Elena Kagan explains that standing rules arise from the Constitutional requirement that SCOTUS only has jurisdiction of actual controversies. If a plaintiff isn’t injured, there is no standing.

It still contravenes a bedrock principle of standing law—that a plaintiff cannot ride on someone else’s injury. Missouri is doing just that in relying on injuries to the Missouri Higher Education Loan Authority (MOHELA), a legally and financially independent public corporation. And that means the Court, by deciding this case, exercises authority it does not have.

On the merits, Roberts addresses the statutory power granted to the executive branch to waive or modify any provision of the student loan program in the event of a national emergency. He explains that “waive” doesn’t mean waive, and that “modify” doesn’t mean modify, if the change is big. A lot of money is a big change. He doesn’t even hint at the words Congress should have used to get its way.

He says his opinion is supported by what he grandiosely calls the Major Questions Doctrine, because there’s a lot of money at stake. I call it the Major Questions Metadoctrine, or MQM, for reasons that will appear.

Barrett’s Concurrence. Amy Coney Barret, who clerked for the odious Antonin Scalia, styles herself a textualist. She wants us to know that the MQM is very good, so she writes a concurring opinion. Most of is is technical legal stuff about canons of interpretation. Two points are worth mentioning.

1. Barrett cites a 2010 law journal article by John f. Manning, a Harvard Law professor: Clear Statement Rules and the Constitution. You don’t have to read past the abstract to find out what Manning thinks:

This Essay argues that such clear statement rules rest on the mistaken premise that the Constitution contains freestanding values that can be meaningfully identified and enforced apart from the specific terms of the clauses from which the Court derives them.

Barrett ignores this point entirely. The MQM is supposed to be a clear statement rule. There are a number of these, mostly directed to structural constitutional issues like federalism. The Slaughterhouse Cases could be seen as an application of a clear statement rule, if it weren’t so obviously unnecessary and wrong.

In Biden v. Nebraska the MQM is applied to enforce Congressional control over the purse. But as Barrett herself shows, that isn’t in the Constitution. In her view, this purpose is an emanation from the Appropriations Clause. The power of the purse is a judicial trope, already once removed from the text of the Constitution. The MQM is a further step from the Constitution. Thus, a metadoctrine.

2. Barrett offers a hypothetical to explain her view.

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction?

This is a laughable hypothetical. The Biden Administration didn’t just decide for funsies to reduce student debt. There was an economic catastrophe caused by a pandemic that killed a million Americans and sickened tens of millions.

The correct hypothetical is not a trip to a theme park, but a trip to the emergency room paid with the credit card.

This is shoddy work, but it’s all we an expect from rigid ideologues. It’s also an ugly parallel with the Reconstruction Era Supreme Court.

Conclusion

The parallels to The Slaughterhouse Cases are, I hope, obvious.

1. SCOTUS will ignore every restriction on its use of power if five members want to.

2. There is no statutory language clear enough if five (or more) members of SCOTUS don’t like the policy.

3. SCOTUS is very supreme.

Justice Jackson’s Brilliant Debut

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On her second day of oral argument at the Supreme Court, Justice Ketanji Brown Jackson showed the wisdom of her appointment and confirmation. A short clip of one of her questions in Merrill v. Milligan made the rounds on Twitter, giving everyone a taste of her skill and understanding. Her point was so powerful I wondered how the lawyer responded.

The case involves an Alabama redistricting map. Plaintiffs alleged that the map unfairly discriminated against Black voters by reducing the number of majoirity-minority congressional districts unfairly. A three-judge district court ruled that the map violated Section 2 of the Voting Rights Act.

Here’s a fairly neutral discussion of the legal context in which the case was argued. Sec. 2 gives individuals the right to sue to prevent any state action to dilute minority voting power. The leading case on Sec. 2 is Thornburg v. Gingles, 478 US 30 (1986). The case sets out three factors which the plaintiff must prove to establish a violation of Sec. 2.

1.The racial or language minority group is “sufficiently large and geographically compact to constitute a majority in a single-member district”;

2. The minority group is “politically cohesive” (meaning its members tend to vote similarly); and

3. The “majority votes sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.”

The colloquy between Justice Jackson and Alabama Solicitor General Edmond Lacour concerns the first Gingles test. Lacour argues that plaintiffs were required to present a race-neutral map as a benchmark to show that Alabama’s map diluted Black voting power. The transcript can be found here. We start at page 52. Justice Amy Coney Barrett asks Lacour this question:

…if you were forced to adopt a map proposed by the plaintiffs that was racially gerrymandered because race was predominant in its drawing, that you would be violating the Fourteenth Amendment.

Therefore, the first factor of Gingles required to get past the hurdle that Justice Jackson was talking about, to get past that hurdle, it required race neutrality.

Is that your central argument?

MR. LACOUR: Yes, that –that is our core argument that it –it cannot be that they can come forward with a map that we would never be allowed to draw, call it reasonably configured and then force us to draw a map we would never be allowed to constitutionally draw.

You can think of that either –the problem is either race predominance or the problem is, when race enters in to the equation, then traditional districting principles necessarily have to yield, which is what the district court found on page 214 of the Milligan stay appendix, non-racial considerations had to yield to race.

He’s saying that the Constitution bars Alabama from drawing a map that uses race to create majority Black districts. After further discussion, Justice Jackson takes over.

JUSTICE JACKSON: Yes. I am so, so glad for Justice Barrett’s clarification because I had the same thought about what you were arguing, and I’m glad that you clarified that your core point is that the Gingles test has to have a race-neutral baseline or that the –the first step has to be race-neutral.

And –and what I guess I’m a little confused about in light of that argument is why, given our normal assessment of the Constitution, why is it that you think that there’s a Fourteenth Amendment problem? And let me just clarify what I mean by that.

I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought about and when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way.

That they were, in fact, trying to ensure that people who had been discriminated against, the freedmen in –during the reconstructive –reconstruction period were actually brought equal to everyone else in the society.
So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves.

The legislator who introduced that amendment said that “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen.”

That’s not –that’s not a race-neutral or race-blind idea in terms of the remedy. And –and even more than that, I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right? They drafted the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens. So they recognized that there was unequal treatment, that people, based on their race, were being treated unequally.

And, importantly, when there was a concern that the Civil Rights Act wouldn’t have a constitutional foundation, that’s when the Fourteenth Amendment came into play. It was drafted to give a foundational –a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens.

So with that as the framing and the background, I’m trying to understand your position that Section 2, which by its plain text is doing that same thing, is saying you need to identify people in this community who have less opportunity and less ability to participate and ensure that that’s remedied, right? It’s a race-conscious effort, as you have indicated. I’m trying to understand why that violates the Fourteenth Amendment, given the history and -and background of the Fourteenth Amendment?

Lacour says:

The Fourteenth Amendment is a prohibition on discriminatory state action. It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.

That contradicts what Justice Jackson just said. She repeats her point using shorter words. Lacour repeats his earlier statement that Alabama shouldn’t have to sacrifice “other redistricting principles” for the sake of racial fairness unless plaintiffs prove Alabama’s map is discriminatory. He says plaintiffs have to prove specific racial discrimination before thay can use race as a factor in drawing lines. That would require plaintiffs to produce a race-neutral map as a matter of evidence. Justice Jackson says that the point of the Gingles test is to make that determination as required by Sec. 2. Lacour says:

Not if they’re allowed to sacrifice our principles to come up with their maps.

“They” refers to the Black Plaintiffs. Justice Jackson pokes at this response and Lacour says some words. Roberts moves to the next lawyer.

Discussion

1. Justice Jackson is right on the original purpose of the Fourteenth Amendment. In The Slaughter-House Cases SCOTUS construed it so narrowly that it became useless for equalizing government treatment of newly freed slaves, or anyone else, except in very rare cases. But recent scholarship has recovered the original intent. See, e.g. R. Barnett and E. Bernick, The Original Meaning Of The Fourteenth Amend: It’s Letter And Spirit (2018). I haven’t read this book, but based on reviews, it generally tries to extricate the original breadth of the Fourteenth Amendment in Line with Justice Jackson’s analysis. Barnett is a well-known originalist.

2. Lacour’s position is absurd. How can you not laugh at the idea that Alabama has sacred principles of drawing district lines? Of course it does: draw the lines so White people always win. Even if we could imagine some other principle, why should it be so important as to justify diluting minority voting power?

3. John Roberts has devoted his career to destroying the Voting Rights Act. The other right-wingers follow him because it suits their own partisan purposes. They all follow in the tradition of the revanchist SCOTUS of the Slaughter-House Cases. The idea that the Fourteenth Amendment is color-blind is madness.

4. The six right-wingers pretend that their decisions are guided by originalism. When this opinion comes out, look for the tortured logic dismissing the originalist argument so clearly laid out by Justice Jackson.

5. The coward Ben Sasse said that he couldn’t vote to confirm Justice Jackson because he only supported originalists. Obviously she is intellectually rigorous, using originalism as one of the tools of interpretation, just as she said in her confirmation hearing. The six right-wingers only care about original intent when it can be made to fit their preferred outcome.

6. The revanchist six claim that their opinions are driven by their judicial philosophy, not by political ends. They scold their critics for questioning their legitimacy. But the reality is that their so-called judicial philosophy is indistinguishable from right-wing Republican ideology.

Six Weeks: The Tactics of Sammy Alito’s Abortion

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Last night, Politico published a February 10 draft opinion in the Dobbs case, authored by Sam Alito, that overturns Roe and Casey entirely. I’ll leave it to experts to analyze the opinion. For my purposes, it matters only that it is legally and historically shoddy (meaning, Alito didn’t even care about making a convincing argument before taking away constitutional protections), and that it would also permit states to roll back protections for gay rights, contraception, and privacy generally.

I’d like to talk about tactics.

This leaked draft opinion, while not unprecedented, is almost that momentous. But the leak of the draft will in no way affect abortion access after June in any case. Since the oral argument, there was never a doubt that Casey, at least, was going to be effectively overturned. The only suspense, then, and now, concerned the scope of rights the Supreme Court eliminated and how John Roberts will vote.

The most hackish five justices support the Alito argument. And — in CNN reporting that is almost as important as the Politico leak — John Roberts would have voted to uphold Mississippi’s sharp restrictions on abortion in any case.

CNN legal analyst and Supreme Court biographer Joan Biskupic reported late Monday that Chief Justice John Roberts did not want to completely overturn Roe, meaning he would have dissented from part of Alito’s draft opinion, likely with the top bench’s three liberals.
That would still give the conservatives a 5-4 majority on the issue.

Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a woman’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.

CNN’s report suggests this leak more likely came from Roberts’ chambers than the most likely other source, Stephen Breyer’s. The most logical explanation for the leak is that Roberts is trying to get his colleagues to adopt a less radical opinion. And if that’s the purpose, it might have the desired effect, both by making it clear what a shit-show the original Alito opinion will set off, but also by exposing the opinion itself to the ridicule and contempt it, as written, deserves.

But that doesn’t change the fact that in one way or another, the national protection for access to abortion is gone by the end of the SCOTUS term next month.

So those who support equality for women (and LGBTQ rights, and privacy generally) should consider this leaked draft as an opportunity to use the next six weeks — assume the final opinion will be released in mid-June — to lay the groundwork for what comes next. Symbolically, those who support equality for women (and LGBTQ people) now have about as long as many states will permit abortions to do something to protect the right to abortion (and to marry who you love) going forward.

It’s not clear how overturning abortion access or the early release of this opinion will affect politics going forward. I can certainly see it driving the plurality of Republicans who support such a radical stance. I can also see this decision being decisive in defeating some anti-choice Senate candidates and maybe, because this was released before the run-off, the remaining anti-choice Democrat, Henry Cuellar. Gavin Newsom has already talked about adding abortion to California’s constitution, and California might not be the only such state. Perhaps it is not too late to find a way to put reproductive rights on the ballot as a referendum (though I assume it is). Certainly, this is way to make abortion support a litmus test for state-wide elections.

Certainly, this decision raises the stakes of Brett Kavanaugh’s lies in his confirmation and Clarence Thomas’ implication in his wife’s participation in a coup attempt.

Democrats are talking about abolishing the filibuster to pass abortion rights, but there’s no indication they have 51 votes to pass it. Maybe this would change things?

But there are other ways to mobilize what is a solid majority (including most large corporations) in the United States to undercut this decision, and possibly to change the tenor of politics in this country. Americans believe that women and gays (at least) should be treated as equals. A radical minority disagrees.

Use the next six weeks to figure out how to isolate them as a radical minority.

Update: Noted that this opinion will just end national protections on abortion access.

Update: Roberts is ordering an investigation, suggesting he is not aware of the leaker’s identity. Others have made persuasive arguments that this is from one of the radicals, attempting to keep the five vote majority.

This Is Not How You Wield Power: Toxic Punditry’s Lack of Self Awareness

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[NB: check the byline, thanks. /~Rayne]

This is complete and utter bullshit:

We all know asking Justice Clarence Thomas to recuse himself is merely pissing into the wind. Congressional Democrats are obligated to ask this of him but they know Thomas is corrupt and won’t give the demand a second thought.

What’s bullshit, though, is MSNBC’s Mehdi Hasan and Ayman Mohyeldin ripping into House Speaker Nancy Pelosi about a request by Democrats to Thomas for his recusal on cases related to the January 6 insurrection.

We all know as well the real problem is that Thomas should be removed from the Supreme Court. Pelosi was absolutely correct saying that Thomas should never have been approved as a SCOTUS jurist to begin with. His failure to report his spouse’s income appropriately — particularly Ginni Thomas’s income from her nonprofit — during the lead up to the 2010 Citizens United v. FEC decision was unacceptable, as was his meeting with the Koch brothers.

But the House had absolutely nothing to do with Thomas being approved in the first place. The Senate is responsible for review of nominees to the Supreme Court and their approval.

We all know, too, that the House may impeach jurists, but they cannot be removed without a two-thirds vote for conviction by the Senate.

And in this case, a Senate which is only nominally held by Democrats. They couldn’t convict and remove Trump twice after impeachment for the same reason — an inadequate number of Democrats in the Senate.

Where is this power that Hasan and Mohyeldin think Pelosi has as House Speaker when she cannot remove Thomas? Why are they insisting she launch a war she can’t win? (We can see how that works out for Putin in Ukraine.)

All these two boneheaded pundits (and others making the same argument like them) are doing is misogynist pontificating when they know it’s the Senate which can force the issue and only if there were two-thirds of the Senate willing to vote to convict Thomas for his continued corrupt practices.

Yet you don’t see pundits like Hasan and Mohyeldin going after Senate Majority Leader Chuck Schumer. Nope.

Why is that?

~ ~ ~

They’re literally filling empty air time with useless crap which only serves to damage the public’s opinion of House Democrats — the portion of government which has most reliably served the needs of the people during the Biden administration while the Senate obstructs its efforts.

They’re directly contributing to and amplifying the same poisoning of public opinion already performed by right-wing media outlets Fox News, Newsmax, and OAN, grossly distorting the public’s perception of US government.

It’s right there in front of their noses and they don’t see it:

Hello, Sam Stein, who’s with both MSNBC and Politico? You’re not doing a very good job breaking through to the public if they believe the complete opposite of the truth.

Dan Froomkin elaborated on media’s failures with help from Dean Baker; public opinion about employment is particularly telling.

An additional 21 percent didn’t know one way or the other. Only 28 percent said, correctly, that jobs were created. Less than half of those — only 12 percent — knew that it was more jobs created than in any other year in history.

Similarly, only 19 percent said they thought the U.S. economy experienced more job growth than normal in the past year. The plurality – 35 percent – said they thought more jobs were lost than usual, which is of course spectacularly wrong.

Media figures go out of their way to make sure something looks like it’s on fire or bleeding, so much so that it’s a joke.

But sure, keep beating on House Speaker Pelosi because that will effect the change needed as will pissing into the wind.

~ ~ ~

A pre-print study found that it’s not solely the public at fault when it comes to misperception — it’s not purely partisanship which mis- or disinforms their opinions.

A key problem is the business model: audience members’ understanding and opinions could be shaped by exposure to media, if media bought their time.

Unfortunately, cable and broadcast news don’t pay their viewers. They rely on advertising and subscription volume; their programming becomes little more than reductive clickbait fighting for audience attention. They’ll run the inflammatory material which skews public opinion the wrong way because good news is boring.

It makes sense, and yet the answer to running content which is both more attention-grabbing and -retaining to viewers and the ethically responsible content to run is right there under their noses.

Assuming, of course, the media outlets aren’t forcing their pundit-anchor class to promote corporatism über alles.

Why aren’t programs like Hasan’s and Mohyeldin’s contacting every goddamned Senator and putting them on the record one at a time on camera about their position on Thomas’s failure to recuse himself and whether they would vote to convict him if impeached for abuse of his office as jurist?

I’d pay to watch them squirm. I’d pay to watch Senators’ chiefs of staff run away from mics to avoid answering.

I’d pay to watch them ask Josh Hawley, Ted Cruz, and Tommy Tuberville if Thomas should recuse himself on any lawsuit in which they may be named as co-conspirators because Thomas’s wife Ginni sided with Hawley and Cruz on overturning or obstructing the election…and was it obstruction of Congress or overturning an election in which they had been encouraged to participate?

That’d be Must-See TV.

~ ~ ~

The other person who gets off lightly all the damn time to the point every media outlet forgets he exists: Chief Justice John Roberts.

He’s the administrative leader of SCOTUS. Every decision made during his tenure will be attributed to the Roberts’ court.

Clarence Thomas’s unmitigated corruption including the damage to democracy Thomas’s role in Citizen United played is the product of Roberts’ court.

The lack of a self-imposed binding code of conduct is Roberts’ failure. Thomas’s refusal to recuse himself from January 6 cases which may be decided by SCOTUS is also his failure.

The lack of legislation requiring a SCOTUS code of conduct with adequate teeth to ensure enforcement is Congress’s fault, but primary responsibility is that of the Senate. In its absence Roberts could administer his court in a way which enforces judicial ethics.

Why wasn’t Roberts a subject of Hasan’s and Mohyeldin’s critique when Roberts clearly has the power to rein in corruption among his jurists?

~ ~ ~

But the real power to which Hasan and Mohyeldin deliberately turned a blind eye wasn’t Nancy Pelosi’s as House Speaker.

It wasn’t even Chuck Schumer’s, or John Roberts’ power.

That pre-print study says it’s their own. How convenient these media figures with a bully pulpit have a handy favorite punching bag to use as clickbait, redirecting attention away from their own failures as media figures with sizable audiences whose perception they shape.

By the way, you have power, too. You should be exercising it by calling your representative and senators and demanding legislation to implement a code of ethical judicial conduct for the Supreme Court (since Roberts appears unable or unwilling to produce one), and impeachment and conviction of Clarence Thomas for his lack of ethics as a jurist.

Congressional switchboard: (202) 224-3121