Slouching Towards Oblivion

Showing posts with label SCOTUS. Show all posts
Showing posts with label SCOTUS. Show all posts

Tuesday, March 05, 2024

SCOTUS


Kinda lost in the hubbub swirling around the court's fucked up decision to overturn the Colorado Supremes' ruling that Trump is disqualified from holding office, is the fairly simple fact that both the Colorado Supreme Court and now SCOTUS have let Judge Wallace's finding of fact stand.

ie: Donald J Trump engaged in insurrection against the United States of America.


Tuesday, February 20, 2024

The Courts

Wealthy wingnuts have turned SCOTUS, especially, and some of the lower courts in general, into enclaves of paid political activists.



Opinion
Does it matter which party nominated a judge? Here’s why it does.

“Why does the media insist on identifying the president who appointed the federal judges who make a newsworthy decision? It feeds the misimpression that our courts are just partisan policy arms of the party of the president behind their nomination. Competing judicial philosophies are the source of differences, and one school tends to come from Republicans, the other from Democrats. But the courts are not partisan policy [forums] embracing and continuing the substantive issue fight between the two major parties.”

This email, from a federal appeals court judge, arrived in my inbox shortly after I wrote a column about the appeals court ruling denying former president Donald Trump’s claim of absolute immunity for his acts as president — an opinion, that, as I noted, came from two Biden appointees and a nominee of George H.W. Bush.

As it happens, the judge who emailed me was named to the bench by President Ronald Reagan, but in this situation his party affiliation isn’t relevant. Judges named by presidents of both parties bristle — equally and forcefully — at the journalistic practice of identifying judges this way, and I get that. No one wants to be thought of as a partisan hack, doing the bidding of political allies. And, as my judge friend noted, a big piece of the underlying reality — “competing judicial philosophies” — is far more subtle than hackery.

Still, as I replied to the judge, in the current environment, party is relevant. In a politically salient case, knowing the identity of the president who nominated a particular judge, as well as examining the partisan composition of a three-judge panel (the way federal appeals courts operate), is a reliable predictor of outcome.

Federal judges have argued passionately to me that it disserves the public to reinforce the notion of judges as political actors. I think it’s the opposite: It would be keeping relevant data from readers not to include this information. In recent years, as judicial philosophy has become an increasingly important factor in judicial selection for presidents of both parties, I have made it a practice to note the identity of the president who nominated the judge or judges involved. If judges are behaving in ways that could be predicted by their political affiliations, readers deserve to know. If they are ruling contrary to what might have been expected, that’s significant, too.

Now comes a groundbreaking study by a Harvard Law School professor that buttresses my point — if anything, it suggests we have underestimated the impact of party affiliation on judicial outcomes. Alma Cohen, whose training is as an economist, examined 630,000 federal appeals court cases from 1985 to 2020 and found that the impact of party affiliation went far beyond hot-button issues such as guns or abortion.

Rather, she wrote, “the political affiliations of panel judges can help predict outcomes in a broad set of cases that together represent over 90% of circuit court decisions. The association between political affiliation and outcomes is thus far more pervasive than has been recognized by prior research.” Note, Cohen isn’t contending that partisan affiliation affects 90 percent of cases — just that it has a statistically significant influence on outcomes in this large class of decisions.

Cohen’s hypothesis is that Democratic judges and Republican judges “systematically differ in their tendency to side with the seemingly weaker party.” For instance, in civil litigation between individuals and institutions, such as the corporations or the government, “panels with more Democratic judges are more likely than those with more Republican judges to reach a decision that favors the individual party.”

The same holds true for other types of cases. “In the categories of criminal appeals, immigration appeals, and prisoner litigation, increasing the number of Democrats on a circuit court panel raises the odds of an outcome favoring the weak party,” Cohen wrote. Overall, “switching from an all-Republican panel to an all-Democratic panel is associated with an increase of 55% in the baseline odds of a Pro-weak outcome.” In immigration cases, an all-Democratic panel was twice as likely to produce a finding for the immigrant as an all-Republican one during the 35-year period she studied.

One criticism of earlier examinations of partisan differences among judges has been that they do not take into account unpublished decisions, which account for the vast majority of appellate action. Another is that they focus on the subset of rulings that generate dissents, just a few percentage points of all decisions and around 10 percent of published opinions, those that are deemed to have precedential value. But Cohen’s work showed similar partisan effects among both published and unpublished decisions, and in both unanimous and divided panels.

Among other interesting findings, the impact of a panel composed of nominees of both parties was not symmetrical: “A lone Republican judge on a panel with two Democratic judges has a stronger ‘moderating’ effect on the panel majority than does a lone Democrat on a panel with two Republican judges.” And Democratic appointees seemed more inclined to reverse lower-court rulings than their Republican counterparts: “In civil litigation cases between parties of seemingly equal power, panels with more Democratic judges are less likely to defer to lower-court decisions.”


The real-world impact of these differences is striking. Had Al Gore become president in 2000 instead of George W. Bush, Cohen estimated that a two-term Gore presidency, and the judges he would have appointed, would have changed the outcome in about 10,000 cases over the next 20 years, including 2,500 improved outcomes for individuals in civil litigation, about 1,100 improved outcomes for private parties in civil suits against the government, about 2,500 improved outcomes for criminal defendants in criminal appeal, about 1,500 improved outcomes for immigrants in immigrations appeals and about 1,100 improved outcomes for prisoners in prisoner litigation.

“It’s important to know that this effect is not just in highly controversial cases,” Cohen told me. “It’s in almost all cases.”

All of which is to underscore not only why I identify judges by party, but, as the presidential election looms, how important it is for all of us to pay attention to the composition of the courts. Who becomes president makes a difference, not just for the Supreme Court, but for lower courts as well. As much we might prefer it to be otherwise, party matters.


Saturday, January 06, 2024

Will SCOTUS Step Up?


Jennifer Rubin

Opinion
You can bet on the Supreme Court’s abject partisanship

Happy new year! To start us off in 2024, I will look at the Supreme Court’s constitutional conundrum, pick the distinguished person of the week and share my thoughts on two movies.

What caught my eye

By any objective reading of the Constitution, four-times-indicted former president Donald Trump should be disqualified from holding office under Section 3 of the 14th Amendment. The U.S. Supreme Court will have a hard time reversing the Colorado Supreme Court’s decision applying Section 3, but that doesn’t mean it won’t.

The president is undoubtedly an “officer” under Section 3. (That the word “officer” is used to refer to subordinate appointees in the appointments clause in the body of the Constitution is utterly irrelevant to its use more than 150 years later to protect the Union from former Confederates.) In any event, the phrase “hold any office” sweeps in the presidency. (As the Colorado Supreme Court noted: “The Constitution refers to the Presidency as an ‘Office’ twenty-five times.”)

The Colorado court’s evidentiary hearing also confirmed that Trump had “engaged in insurrection or rebellion against the same [the Constitution], or given aid or comfort to the enemies thereof.” Its exacting discussion on pages 97-103 of its ruling reiterated that “the record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable definition, this constituted an insurrection.”

In addition, contrary to Trump apologists, there is no requirement in the text requiring a conviction before the disqualification. Had the framers intended to make that a precondition, they surely would have said so. (The conviction of former Confederates was not a required under Section 3.)

And finally, arguments that the 14th Amendment is not “self-executing” (i.e., requiring an act of Congress) are plain wrong. Individuals routinely bring suits directly under the due-process and equal-protection clauses of Section 1. As with Section 1, Congress may write enforcement legislation for Section 3, but none is necessary.

An honest originalist would be compelled to agree with the Colorado Supreme Court. Our democracy disallows certain candidates for president — e.g., foreign-born people, insurrectionists. As constitutional scholar Rep. Jamie Raskin (D-Md.) said on CNN’s “State of the Union,” “I have got a colleague who’s a great young politician, Maxwell Frost. He’s 26. He can’t run for president. Now, would we say that that’s undemocratic? Well, that’s the rules of the Constitution. If you don’t like the rules of the Constitution, change the Constitution.” If the Constitution is to mean anything, originalists tell us, its text must be followed even if the outcome is politically dicey. (Certainly, allowing an insurrectionist back on the ballot to do it again would be more problematic.)

And yet, few expect the Supreme Court’s right-wing majority, so profoundly lacking in credibility, to follow Section 3’s clear mandate, any more than they expect Justice Clarence Thomas to recuse himself, given his wife’s alleged involvement in the coup plot. How, then, do the justices get out of doing what the Constitution says they must?

First, the Supreme Court could concoct some novel definition of “insurrection” so it can categorize the attempted coup as something less than the “insurrection” Section 3 requires. Despite the Colorado court’s ample historical research demonstrating that Trump’s action fits squarely within the word’s meaning, the right-wing justices could simply make up a new definition. I would not put it past them.

Second, the court could duck the case on the grounds that it lacks jurisdiction to contravene a state’s ruling on qualifications for a primary, essentially putting off a decision until Trump becomes the Republican nominee. That said, very few court watchers expect the majority would countenance a hodgepodge of conflicting rulings, with some states allowing him on the ballot and others not. (By the way, unleashing utter chaos among states is precisely what the court did on abortion, but this court is no model of consistency.)

Finally, a related argument would be that states alone have the duty to determine qualifications. The only federal role comes when Congress can challenge electors. “Under Article II, Section 1, each state is authorized to appoint presidential electors ‘in such Manner as the Legislature thereof may direct,’” Colorado’s Supreme Court noted. “Absent a separate constitutional constraint, then, states may exercise their plenary appointment power to limit presidential ballot access to those candidates who are constitutionally qualified to hold the office of President.” Those enamored with the (rejected) independent state legislature doctrine might agree, but I suspect this partisan majority will not allow any state to exclude Trump from the ballot.

Bottom line:
The partisan majority on the court could duck the question, deeming it premature or a matter for the states, thereby enraging their right-wing patrons, though that is highly unlikely. Alternatively, it could fashion a definition of insurrection to suit its purposes or blatantly defy Section 3’s clear language (e.g., invent a requirement for a criminal conviction). Right-wing justices’ contortions will confirm the utter lack of credibility that now defines the court.

- more -

Friday, January 05, 2024

SCOTUS Takes A Hand

Let's just say the Roberts Court will probably be looking to carve this thing down to the sliveriest sliver that anybody ever saw.

Did you ever play Mumbly Peg with a guy who was bound and determined to make you eat dirt? Yeah - kinda like that.

Conventional wisdom says Roberts has to protect the court's already-damaged public image. And maybe that's what carries the day, and we'll get a ruling that's "true to the Originalist view". Which means the 14th amendment stands as written, and Trump can't be president.

That's what makes the most sense to me. The trial court in Colorado found, on the facts, that Trump did engage in an insurrection, and left it to the CO Supreme Court (which affirmed the lower court's finding as to the facts) to decide on the law - that Section 3 of A14 means Trump can't be on the ballot.


My first guess is that they'll weasel their way into a 5-4 decision that "let's the voters decide".

I think Roberts would have to be that 4th vote on the dissenting side, which would pretty much tar him permanently as a Chief Justice In Name Only.


Supreme Court says it will decide if Trump qualifies for Colorado ballot

The Supreme Court said Friday it will decide whether former President Donald Trump’s name can appear on primary-election ballots, a case that ensures the justices will play a central role in shaping this year’s presidential election.

The decision to review the case from Colorado at oral argument in early February comes after that state’s top court disqualified the Republican frontrunner, finding Trump engaged in an insurrection before and during the Jan. 6, 2021, attack on the U.S. Capitol.

Friday’s announcement puts the justices in a pivotal, potentially uncomfortable position with echoes of the court’s involvement in the 2000 election when its decision assured victory for President George W. Bush, polarized the nation and damaged the court’s reputation as an independent institution.

The court’s brief order scheduled oral argument for Feb. 8, and came the day before the third anniversary of the Capitol riot.

Legal scholars and state election officials have urged the court to quickly settle the question of Trump’s eligibility as a candidate and to ensure all states follow the same policy ahead of this year’s primary voting. Trump holds a wide lead over other Republican contenders, with the Iowa caucus less than two weeks away and state primaries starting Jan. 23.

The Colorado decision was the first time a court found a presidential candidate could be barred from the ballot because of a provision of the post-Civil War 14th Amendment. The provision prevents insurrectionists from holding office and was designed to keep Confederates from returning to power.

Aye there's the rub - the Thomas/Alito faction could bail on a "traditional originalist view" (I don't know what the fuck that might means, I just made it up - you think any of this is following any kinda logical pattern?).

Anyway, they push it all the way down to a decision not to make a decision, because the original intent of the authors of A14 was to bar Confederates from returning to Congress. It had nothing to do with a sitting POTUS. It doesn't apply.

Hey - ya heard it here first.


Similar arguments have been made to keep Trump off the ballot elsewhere. While those challenges have failed in some states, like Michigan and Minnesota, they are pending in Illinois, Oregon, Massachusetts and elsewhere. Maine’s top election official last month barred Trump from that state’s ballot, an order Trump has appealed in state court.

Both Colorado and Maine temporarily put their decisions to bar Trump as a candidate on hold, meaning the former president’s name will stay on the primary ballots until the legal issues are resolved. Colorado and Maine hold primaries on March 5, but ballots are printed — and mailed to military and overseas voters — weeks before then.

The public already views the Supreme Court through a partisan lens, with Democrats expressing little confidence in the court and Republicans saying the opposite, and the question of whether Trump should be kept off the ballot has the potential to further polarize those views.

“It throws them right into the political thicket,” Stanford law professor Michael W. McConnell said of the court. “There is no way they can decide the case without having about half the country think they are being partisan hacks.”

In part for that reason, Chief Justice John G. Roberts Jr., an ardent institutionalist, is likely to look for consensus through a narrow ruling that seeks unanimity or avoids a partisan split on a court with a 6-3 conservative majority that includes three justices nominated by Trump.

Constitutional scholars are divided on whether it would be good for democracy to bar Trump from the ballot, or whether such a move, even if legally sound, is politically too dangerous. Many of them say they expect the justices to try to find a way to decide the case without addressing the underlying question of whether Trump engaged in insurrection.

The justices have several paths to resolve the case in a way that keeps Trump’s name on the ballot without dealing with the question of insurrection.

In urging the justices to invalidate the Colorado decision, and give voters the opportunity to select the candidate of their choosing, the former president’s lawyers and the Colorado Republican Party have made multiple arguments. States, they say, have no authority to enforce Section 3 of the 14th Amendment without the passage of federal legislation. They also contend that Section 3 applies to those who took oaths to serve in Congress or a state legislature, but not to serve as president. In addition, Trump’s lawyers say he did not engage in an insurrection.

If a majority of justices agree with Trump on any one of those arguments, the court could allow the former president’s name to remain on the ballot.

Attorneys for the six Colorado voters who challenged Trump’s eligibility have said the Constitution’s language barring insurrectionists from office is clear; that it applies to presidents; and does not require an act of Congress to be enforced. They urged the justices in a filing Thursday to abide by the finding from Colorado’s top court that the former president intentionally incited his supporters to violence on Jan. 6, 2021, to disrupt the certification of the election — and exacerbated the attack while it was ongoing.

Of the nine sitting justices, only Justice Clarence Thomas was on the bench when the court issued its 2000 decision about the vote count in Florida in Bush v. Gore. But his colleagues are certainly mindful of the lasting impact the ruling had on the court’s image.

Years after she retired, the late Justice Sandra Day O’Connor, for one, expressed misgivings that the court had gotten involved in the case, acknowledging the ruling “gave the court a less than perfect reputation.”

“No doubt they have learned some lessons from that," said McConnell, a former federal appeals court judge. “They do not want to be in a position where they look like they’ve decided an American election.”

Wednesday, November 15, 2023

27


I have no idea how it would work - how we'd go about putting it in motion - but it's worth considering.

Wednesday, November 08, 2023

7 Things


Quick little roundup.


1) Abortion rights advocates won big victories in three states yesterday.
  • In Ohio: Voters passed a constitutional amendment to guarantee abortion access, making it the latest state to take this step since Roe v. Wade was overturned last year.
  • In Virginia: Democrats took control of the General Assembly, meaning they can stop Republicans, led by Gov. Glenn Youngkin, from introducing new abortion limits.
  • In Kentucky: Voters reelected a Democratic governor who attacked his Republican opponent for supporting the deep-red state’s near-total ban on abortion.
2) Ivanka Trump will testify in her father’s New York civil fraud case today.
  • The details: She is not a defendant in this case. But she will be the state’s last witness following testimony from her father, Donald Trump, and two of her brothers.
  • In related news: The former president will skip a Republican primary debate in Miami tonight and host a rally nearby instead. The debate starts at 8 p.m. Eastern on NBC News.
3) Israel’s endgame in the Gaza Strip is unclear after a month of war.
  • What to know: Israel’s prime minister said Monday that Israel would control Gaza’s postwar security for an “indefinite period,” which reportedly concerned U.S. officials.
  • In the U.S.: The House voted yesterday to censure the only Palestinian American member of Congress, Rep. Rashida Tlaib (D-Mich.), over her comments about the war.
4) The Supreme Court appears likely to allow gun bans for domestic abusers.
  • What happened? Justices seemed to agree yesterday that a federal statute preventing people under domestic-violence protective orders from possessing guns is constitutional.
  • Why it matters: This case is the first big test of the court’s ruling last year which requires judges to decide challenges to the Second Amendment by finding examples in history.
5) Northern Greenland’s ice sheets are rapidly retreating.
  • What to know: The vast floating ice shelves have lost 35% of their total volume since 1978, according to new research.
  • Why it’s worrying: The ice shelves hold back glaciers from flowing into the sea. If more are lost to warming oceans, it could lead to significant sea level rise.
  • In related news: Last month was the planet’s warmest October on record.
6) Nintendo is making the Legend of Zelda into a live-action movie.
  • The details: The creator of the wildly popular video game series, Shigeru Miyamoto, revealed yesterday that he’s working on the film but said it will “take time” to finish.
  • It will be tricky to pull off: The series’ main character, Link, doesn’t speak out loud. And the innovative games are famous for letting players choose their own pathways.
7) Cats might be more affectionate and articulate than we thought.
  • How we know: Researchers watched 150 hours of cat videos to learn more about how felines express themselves. They found that cats can make nearly 300 facial expressions.
  • What’s your cat saying? When cats are happy, they typically move their ears and whiskers forward and outward. When unhappy, they flatten their ears and lick their lips.


Tuesday, September 12, 2023

Documenting The Fuckery

I suspect most people will tag this TL;DNR. OK fine - don't give it its due - ya big baby.

Look, I suck at reading. It took me like 40 minutes to get thru this thing. At least give it a shot. Get some of the background on what we're up against.




What Ginni Thomas and Leonard Leo wrought: How a justice’s wife and a key activist started a movement

Thanks to the Supreme Court’s Citizens United ruling, a trove of so-called “dark money” was about to be unleashed. Two activists prepared to seize the moment.


The Supreme Court’s decision in the 2010 Citizens United case transformed the world of politics. It loosened restrictions on campaign spending and unleashed a flow of anonymous donor money to nonprofit groups run by political activists.

In the months before the ruling dropped in January of that year, a group of conservative activists came together to create just such an organization. Its mission would be to, at the time, block then-President Barack Obama’s pet initiatives.

The activists included Federalist Society leader Leonard Leo and his ideological soulmate, a hard-edged activist named Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas.

“Ginni really wanted to build an organization and be a movement leader,” said a person familiar with her thinking at that time. “Leonard [Leo] was going to be the conduit of that.”

She also had a rich backer: Harlan Crow, the manufacturing billionaire who had helped Thomas and her husband in many ways, from funding luxury vacations to picking up tuition payments for their great-nephew.

At the time, the Citizens United ruling was widely expected, as the court had already signaled its intentions. When it came, it upended nearly 100 years of campaign spending restrictions.

The conservative legal movement seized the moment with greater success than any other group, and the consequences have shaped American jurisprudence and politics in dramatic ways.

From those early discussions among Leo, Thomas and Crow would spring a billion-dollar force that has helped remake the judiciary and overturn longstanding legal precedents on abortion, affirmative action and many other issues. It funded legal scholars to devise theories to challenge liberal precedents, helped to elect state attorneys general willing to apply those theories and launched lavish campaigns for conservative judicial nominees who would cite those theories in their rulings from the bench.

The movement’s triumphs are now visible but its engine remains hidden: A billion-dollar network of groups, most of which are registered as tax-exempt charities or social welfare organizations. Taking advantage of gaps in disclosure laws, they shield the identities of most of their donors and some of the recipients of the funds. Among those who’ve been paid by the groups are leading thinkers and individuals with close personal ties to Leo — including a whopping $7 million to a group run by a close friend and his wife. They also include a for-profit business for which Leo himself is chairman and which received tens of millions of dollars from his nonprofit network.


Leo’s role as the central figure in this movement has long been known, culminating in his acquisition last year of what many believe to be the largest political donation in history. Few are aware of the extent to which the movement’s baby steps were taken in concert with Ginni Thomas.

Two months before the Citizens United decision, but after the justices had signaled their intentions by requesting new arguments, attorney Cleta Mitchell — later to play a role in Donald Trump’s false claims about the 2020 elections — filed papers for Ginni Thomas to create a nonprofit group of a type that ultimately benefited from the decision. Leo was one of two directors listed on a separate application to conduct business in the state of Virginia. Thomas was president. She signed it on New Year’s Eve of 2009, and Crow provided much of the initial cash. A key Leo aide, Sarah Field, would come aboard to help Thomas manage the group, which they called Liberty Central.

After Liberty Central went public, it provoked an outcry over a Supreme Court justice’s wife promoting causes like overturning Obamacare that were before her husband’s court. Leo and Thomas changed gears. His network reactivated a dormant group, the Judicial Education Project, which would go on to become a major supplier of amicus briefs before the nation’s highest court. She created a for-profit consulting business using a similar name — Liberty Consulting — that enabled her to perform consulting work for conservative activist groups.

The Judicial Education Project supplied some of her business: Documents indicate Leo ordered at least one recipient of his groups’ funds, Kellyanne Conway, to make payments to Ginni Thomas for unspecified work, according to a Washington Post story earlier this year.

Now, Liberty Consulting is a focus of interest from congressional committees probing the Supreme Court’s ethics disclosures. Senate Democrats have demanded that Leo and Crow provide a list of “gifts, payments, or other items of value” they’ve given Thomas and her husband.

Meanwhile, Leo’s network of nonprofits — whose annual donations have skyrocketed into the hundreds of millions of dollars — is the subject of an investigation by the Washington, D.C., attorney general, POLITICO reported last month. The probe followed a POLITICO report in March that raised questions about whether Leo’s groups were enriching him and his friends by hiring their businesses and donating to their nonprofit groups.

Together, the probes have combined to raise the question of whether Leo’s groups have taken advantage of lax disclosure laws to send additional business and funds to Ginni Thomas, among other activists. That would be legal as long as Thomas was providing services commensurate with the payments.

“The real question then is, ‘what is Ginni Thomas qualified to do, what did they pay her to do, and was it fair market value?’” said Laura Solomon, a Pennsylvania tax attorney who represents hundreds of charitable and other tax-exempt organizations and philanthropists.

Leo, Thomas, Crow and Conway did not respond to questions about their financial relationships, and whether Leo’s groups continued to ask contractors to work with Thomas.

Asked how much money overall Leo has directed to Thomas, when the payments began and if they ever stopped, a Leo spokesman responded: “No comment.”

Thomas’ representative, attorney Mark Paoletta, did not respond to questions.

In a July 25 letter to Congress, Leo’s lawyers said his advocacy work is protected under the First Amendment and that any congressional inquiry into his relationships with Supreme Court justices is “politically charged” and tantamount to harassment.

In a July interview with The Maine Wire, a conservative outlet near his home, Leo spoke about his efforts to “defend the Constitution” and why his nonprofit groups don’t reveal their donors.

“It’s not to hide in the shadows,” he said. “It’s because we want ideas judged by their own moral and intellectual force.”

Launching a Movement

Many people trace the start of the conservative legal movement to 1982, the year of the founding of the Federalist Society, which provided a forum for law students and professors with conservative ideas to incubate their theories.

But the movement that has had such a profound impact on the courts today — one that involves money and politics, more than legal theories or principles — gained steam in the wake of the Citizens United decision.

The case followed a highly unusual path — one blazed by a five-justice conservative majority who seemed determined to strike a blow against campaign finance restrictions.

Initially, the dispute centered on whether a conservative nonprofit’s unflattering documentary on former Democratic presidential candidate Hillary Clinton violated campaign finance laws. Instead of resolving the case along the lines argued by the lawyers, the justices took the unusual step of asking for re-arguments based on a sweeping question — whether they should overrule prior decisions approving laws that limited spending on political campaigns.

The re-argument took place on Sept. 9, 2009. Two months later, on Nov. 6, Mitchell filed an IRS application on behalf of Ginni Thomas to form the group that became Liberty Central Inc. Paperwork Thomas signed on New Year’s Eve listed Leo, then the Federalist Society’s executive vice president, as one of two directors. Field, one of Leo’s right-hand people on state courts at the Federalist Society, came aboard to help Thomas in her new endeavor.

Neither Field nor Mitchell responded to requests for comment.

The application was approved seven days before Clarence Thomas joined the 5-4 majority on a decision that would open the door to a new era of major spending on groups like the one his wife was forming. After putting up $500,000, the lion’s share of her nonprofit’s seed money, Crow held an event for Ginni Thomas at his palatial home in Dallas. The group later made clear its goal was disassembling President Barack Obama’s agenda, mainly the Affordable Care Act.

The Supreme Court

Justice Anthony Kennedy, a Ronald Reagan appointee, assumed in his majority opinion in Citizens United that donations and spending around such groups would be transparent. Justice Thomas, in his concurring opinion, argued against “forcibly disclosed donor information,” which could “pre-empt citizens’ exercise of their First Amendment rights.”

The Citizens United decision — which extended free speech rights to corporations, nonprofits and unions — effectively curbed efforts to rein in political spending, while paving the way for follow-up rulings from courts and the Federal Election Commission that would unleash additional billions of dollars in donations. Those donors would spawn a boom in tax-exempt “charitable” and “social welfare” groups as vehicles for spending on political activity.

A key part of the attraction to these groups was that they could shield the identity of donors, many of whom are reluctant to invite scrutiny of their own agendas.

Speaking out

Just five weeks after the decision, on Feb. 18, Ginni Thomas took the stage at CPAC, an annual gathering of the nation’s most prominent conservative activists. Wearing a white T-shirt emblazoned with a Liberty Central logo, Thomas introduced herself as an “ordinary citizen from Omaha, Nebraska” who felt “called to the front lines” of a battle against “arrogant elites” who “think they know how to manage our lives from cradle to grave.” She evoked the passing of “patriots,” including her 91-year-old mother and Barbara Olson, who had perished in the plane that hit the Pentagon on Sept. 11, 2001, as her inspiration.

“When she was gone, I knew I had to work harder,” Thomas said of Olson, whose widower, Ted, had been a lawyer for Citizens United.

Thomas did not credit Crow, Leo or the Citizens United decision for her new grassroots initiative. That year, she was paid $120,500 from Liberty Central, according to tax records.

The group was destined to have only a short lifespan, thanks in part to a misstep by Thomas. In October, she left a voicemail for Anita Hill, the woman who had accused her husband of sexual harassment during his confirmation hearings in 1991. In it, Thomas demanded an apology for the 19-year-old accusations.

“I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband,” Thomas reportedly said, asking Hill to “pray about this.”

The ensuing news reports drew unwanted attention to Thomas’ new nonprofit, which by then was expressly targeting Obama and his agenda. The news led many ethics specialists to question whether it was appropriate for a Supreme Court justice’s spouse to be leading such a political effort, especially with the court preparing to consider a high-profile challenge to Obama’s health care initiative.

The following month, it was reported that Thomas was stepping down from her top leadership position at Liberty Central, which was eventually absorbed into another nonprofit. Leo came to her defense, bemoaning the “spat of press stories about a single phone call that she made.”

Incorporation records show Thomas had already pivoted to form her own for-profit consulting firm in the state of Virginia. On Nov. 16, Thomas’ “expedited service request” to incorporate her consulting business was approved. And Leo turned to another vehicle he could use to pay her with no apparent paper trail. The Judicial Education Project, a tax-exempt charity that had been founded by three of Leo’s associates in 2004 but soon became dormant, was reactivated and began receiving donations in 2010.

And far from retreating, Thomas merely moved her networking behind the scenes.

“She remained active in the [conservative legal] movement for sure,” said the person who had attended early meetings about her plans and who was granted anonymity to discuss private meetings. “People just always assumed she had to stay below the radar.”

She was a frequent attendee at major coordinating events among conservative nonprofits and was considered “a very popular activist figure,” the person said.

Thomas’ brief run as president of her own nonprofit had given her a taste of a lifelong dream. Thomas grew up tagging along with her mother, a Nebraska GOP Party activist. A 1986 Good Housekeeping article that mentioned the young Virginia Lamp said she aspired to run for Congress, but her biggest challenge was “finding a husband who’ll be supportive of a woman in public life.”

Liberty Central had been explicit about its intent to assist “citizen activists,” launching an “activism how-to website” in August and an ad campaign a month before the 2010 midterm election in which challenging Obamacare was the conservative movement’s primary objective.

Thomas continued her activism after leaving the nonprofit, with Leo helping to send money in her direction.

According to the documents obtained by the Post, Leo told Conway he wanted her to “give ... another $25K” to Thomas and that the records should have “no mention of Ginni, of course.” At Leo’s behest, Conway’s polling firm billed the Leo-affiliated JEP $25,000 that day as a “Supplement for Constitution Polling and Opinion Consulting,” the documents show.

In all, Leo arranged for between $80,000 and $100,000 to go to Thomas through Conway for unspecified work in 2011 and 2012, according to the documents.

Limiting disclosures

There is no direct paper trail for JEP’s spending on Conway’s business, let alone Thomas.

The IRS requires that nonprofits must identify only their top five highest-paid contractors making more than $100,000 annually, but that leaves many contractors off the list. True North Research, an investigative watchdog group, found at least $25 million of the $240 million that JEP has spent on grants and expenses since 2010 — including salaries and contractor fees — went to people whose identities were not revealed.

“This money could have gone to anyone,” said Lisa Graves, the leader of True North Research and former deputy assistant attorney general in the Clinton administration.

In its filings for the year after Leo asked Conway to give money to Thomas, the JEP reported spending a total of $150,000 on “polling,” which could have covered the payments, but Conway’s firm, The Polling Company, was not listed on its paperwork. A spokesman for Leo said JEP used “multiple polling contractors” and that he is “unaware” of any connections between Thomas and those contractors.

In 2011, the judiciary’s policy-making body, a panel overseen by Chief Justice John Roberts, received a complaint from a sitting judge after a watchdog group revealed that Clarence Thomas hadn’t reported hundreds of thousands of dollars earned by his wife.

Clarence Thomas filed amended reports, explaining that his wife’s income was “inadvertently omitted due to a misunderstanding of the filing instructions.” No formal review was conducted, though the panel asserted there was no “willful” wrongdoing by the justice.

The filing requirements themselves were porous enough, however, that justices could effectively omit naming any of their spouse’s clients or the amount of money they were receiving. Thus, in subsequent disclosures, Clarence Thomas would go on to simply list that his wife had received money from her consulting business, without detailing how much or from whom, or whether any of the people paying her had interests before the Supreme Court.

Likewise, gaps in disclosure requirements for nonprofits were large enough that no one could keep track of who was funding Leo’s network. In some instances, the gaps were exacerbated by irregularities. In 2011, JEP reported to the IRS having received no more than $50,000 in donations, even though another Leo-aligned entity, the Wellspring Committee, reported having given JEP $136,000 that year. A spokesman said JEP took in more than expected and accounted for the surplus in a subsequent reports.

The lack of a requirement to report donors became more noteworthy as JEP’s revenue began to grow.

In 2012 — the year Leo asked Conway to direct payments to Thomas through Conway’s polling business — the formerly inactive nonprofit reported receiving $1.5 million. The next year, Thomas’ former law clerk, Carrie Severino, became one of the group’s three directors; by 2014, the nonprofit’s annual revenues were up to $9 million from nothing reported just five years previously, according to tax filings.

Severino did not respond to questions through the Judicial Crisis Network, another Leo-aligned group which she heads.

Pushing an agenda

Meanwhile, JEP was becoming a major vehicle for filing amicus briefs on behalf of the conservative legal movement seeking to influence the Supreme Court. More than just expressions of support for one side or the other, these briefs often encompassed extensive fact-finding and analysis, spanning scores of pages. The goal was to offer conservative justices arguments that they could incorporate into their opinions.

The lead attorney on the first amicus brief JEP joined was former Thomas law clerk John Eastman, who would later advise Trump on theories for overturning the 2020 election. The brief argued that Obamacare’s provision requiring minimum coverage was an “oppressive mandate” and that it was “tainted” by “abuses of the legislative process.” With the support of Roberts, the court ruled against JEP’s position. Clarence Thomas, along with the other conservative justices, joined a dissent that would have found the individual mandate unconstitutional. In later years, the mandate would be effectively ended by Congress repealing its tax penalties.

Many of the JEP’s subsequent briefs listed Severino as counsel of record.

In 2013, JEP filed a Severino-authored brief arguing in favor of striking down a Massachusetts law that made it a crime to stand within 35 feet of entrances to abortion clinics. The state claimed the law was necessary to prevent clashes between demonstrators. JEP, however, argued that abortion clinics provide “incomplete and misleading information about the abortion procedure” and that the law interfered with the rights of “sidewalk counselors.” The court unanimously struck down the law, though a five-justice majority rejected JEP’s contention that the law was aimed at curbing the rights of anti-abortion protesters.

The University of Texas Tower is shown on the university campus.
In 2015, JEP filed a brief in support of a petitioner challenging a University of Texas affirmative action program. | Ronald Martinez/Getty Images

In 2014, JEP weighed in on the landmark case of Burwell v. Hobby Lobby, in which the court decided that companies can opt out of contraception coverage for employees based on the owners’ religious objections. The opinion, written by Justice Samuel Alito and joined by Clarence Thomas, adopted many of the arguments JEP made in its Severino-authored brief, mainly that Obamacare’s coverage requirements burdened the Hobby Lobby owner’s right to free exercise of religion.

In 2015, JEP filed a brief in support of a petitioner challenging a University of Texas affirmative action program, which it called a “back-door” and secretive process. Clarence Thomas and Alito agreed it was “categorically unconstitutional.” The court’s majority disagreed, but later, in 2023, a more conservative court would adopt the position advocated by JEP.

Curbing oversight

Efforts to determine who was funding such advocacy, and whether they had direct interest in the cases, are complicated by gaps in disclosure rules and oversight of nonprofit groups. The rules governing such groups were designed for traditional charities such as Kiwanis Clubs or PTAs. But once activist groups started organizing under the same tax provisions, the IRS was forced to become the arbiter of what constituted politics and what did not.

Since JEP was registered as a charity, “the [IRS] limitations are very clear that you can’t do anything engaged in politics” and cannot organize a nonprofit for the benefit of any private interest or individual, said John Koskinen, a former IRS commissioner from 2013 to 2017 who reviewed the paperwork provided by POLITICO. Though such groups can engage in advocacy and limited lobbying, they are prohibited from participating in campaigns for or against political candidates.

Those who claimed the IRS wasn’t properly scrutinizing such groups quickly ran into a powerful countermovement claiming the opposite.

Mitchell, the lawyer who had helped Thomas set up her own ill-fated nonprofit, began championing a public relations offensive to combat IRS scrutiny of the same nonprofits her allies were erecting. She claimed that the tax agency, then overseen by the Obama administration, was disproportionately targeting conservative groups and called for an independent counsel.

The agency “is so corrupt and so rotten to the core that it cannot be salvaged,” Mitchell said in 2014.

A two-year investigation by the Department of Justice “found no evidence that any IRS official acted based on political, discriminatory, corrupt or other inappropriate motives” and closed with no charges. It did find “substantial evidence of mismanagement, poor judgment and institutional inertia” as IRS officials cut corners to deal with an explosion of Tea Party-aligned nonprofit applications similar to Thomas’ group. But it also found that some progressive groups experienced similar processing delays and extra scrutiny.

Thereafter, the division that polices such nonprofits was effectively neutered by budget cuts. Audit rates plunged as the division became overwhelmed by hundreds of new nonprofits supposedly doing charitable and educational work but actually doing mostly political work. Clawing back funding for the IRS remains a top demand of conservative lawmakers in annual congressional budget negotiations.

The timing of the campaign against the IRS was no coincidence, said Koskinen, the former IRS commissioner who was in office during that period in the Obama administration.

“It shouldn’t surprise anyone that some of the people attacking the IRS and supporting cuts to its budget after 2010 were the same people pushing the envelope of how to move ‘dark money’ around to maximize its political effect,” Koskinen said. “The fewer auditors the IRS had, the lower the odds of being caught.”

Backing Trump

The election of Donald Trump in 2016 opened the door to countless new opportunities for the burgeoning conservative legal movement.

Leo himself had played a strong role in ensuring Trump’s election. When conservatives expressed doubts about the surprise GOP nominee, Leo helped reassure them by persuading Trump to commit to choosing Supreme Court nominees from a list that Leo himself drafted.

Then, after Trump’s victory, Leo worked hard to ensure that the president followed through.

When Conway joined the White House as an adviser to new president, with a hand in judicial nominations, Leo helped facilitate the sale of her polling firm to a Virginia company where he is now chairman.

Leo’s closeness to the White House sparked a fresh surge in donations to his network. In 2020, he announced JEP was being rebranded as the 85 Fund, and its annual fundraising skyrocketed to $65.7 million.

That year also marked the ultimate triumph of the conservative legal movement, as the confirmation of Justice Amy Coney Barrett established a 6-3 majority of justices aligned with Leo’s Federalist Society. Leo used his dark-money groups to fund campaigns urging the confirmation of those justices, including Barrett.

Then, as Trump approached a difficult re-election campaign in 2020, the 85 Fund created a subgroup, The Honest Elections Project, dedicated to amplifying claims of Democrats cheating in elections and pushing for voting restrictions.

Since Trump’s defeat, the Honest Elections Project has seized on momentum created by his unfounded claims of a stolen election to push anti-fraud measures that critics say will make voting harder for everyone.

“Tens of millions of voters harbor grave doubts about the future legitimacy of the democratic process,” the group says on its website. “They expect voting to be secure, accessible, and honest — even in a pandemic. What they got was an election marred by dysfunction, hundreds of agenda-driven progressive lawsuits that undermined voting safeguards, and a system that in many places failed to deliver prompt results. That is not how elections are supposed to work.”

A growing network

The Honest Elections Project is now just one limb of Leo’s fast-growing operation, fortified by what is believed to be the largest political donation in history: $1.6 billion from 91-year-old manufacturing magnate Barre Seid.

But with that immense war chest has come further scrutiny of the network’s spending. In March, POLITICO reported that since Leo became chairman of the for-profit CRC Advisors in 2020, the JEP and another Leo-affiliated group has paid the firm at least $43 million. A few weeks later, a progressive watchdog group filed a complaint with the D.C. attorney general and the IRS requesting a probe into what services were provided and whether Leo was in violation of laws against using charities for personal enrichment.

The probe is ongoing, and a lawyer for the Leo-affiliated groups involved called the complaint “sloppy, deceptive and legally flawed.”

Leo did not respond previously over multiple weeks to requests for information about what services the public relations firm provided to his nonprofits.

He wasn’t alone in declining to do so.

Other Leo allies have nonprofits and have declined comment to POLITICO on what services they provided in exchange for millions of dollars, including Ronald Cass, a Boston University law school dean emeritus who runs a nonprofit registered to his home address in Virginia called The Center for the Rule of Law.

Among the nation’s highest-paid law school deans at the time, Cass resigned his position in 2004 amid controversy over promising $36 million for a new law school building that didn’t fully materialize.

Leo was best man at Cass’ wedding and, in 2018, when Cass’ daughter was a debutante featured at one of the nation’s most exclusive galas, Leo and his wife Sally were among the attendees. Cass was also a longtime friend of Justice Antonin Scalia. In a sign of the family’s proximity to the Supreme Court, Cass was the master of ceremonies at a July 2016 dinner honoring Scalia’s memory. (Leo and Cass both sat at Clarence Thomas’ VIP table according to a seating chart.) Cass’ daughter is slated to clerk for Alito.

Cass’ group, described as an independent “center of international scholars analyzing rule of law issues,” doesn’t have much of a footprint. His wife, Susan, is the only other principal officer listed on paperwork filed in Virginia.

Between 2013 and 2021, Cass’ nonprofit took in nearly $7 million from JEP, according to tax filings. Yet POLITICO did not find a record of the annual paperwork the IRS requires of grantees detailing revenues and expenditures. Further, the group’s tax-exempt status had been auto-revoked by the IRS in 2011, the documents show.

Unless an exception is granted, the IRS requires such organizations to file the forms to keep their tax-exempt status, and all charitable grantors like JEP are required by federal and state laws to ensure grantees are using funds for charitable or educational purposes.

If Cass were running a charitable organization, as indicated on JEP’s annual filings for several years, it should have been filing the IRS forms. If not, it should have paid tax as a for-profit entity, said Koskinen.

Ronald and Susan Cass did not respond to multiple emails seeking comment about whether their organization paid tax, a record that is not subject to public disclosure.

In addition, Cass and Leo have both declined to comment on the nature of Cass’ services since POLITICO first reported in March about sizable payments received by his Center for the Rule of Law.

“Mr. Cass is a recognized expert across a wide variety of legal topics such as administrative law, antitrust, constitutional law, intellectual property, international trade and the legal process,” said the Leo spokesman. “Any organization would be fortunate to work with Mr. Cass and his wealth of knowledge.”

Pushing for answers

Philip Hackney, an expert on tax law and charities who worked in the Office of the Chief Counsel at the IRS under former Presidents George W. Bush and Obama, said he thinks the payments to Cass’ group merit further investigation.

“It’s not a small amount of money going to an organization that lost their tax-exempt status, and they started paying them after they lost their tax-exempt status,” said Hackney, who is now a professor at the University of Pittsburgh. “This is not a good look.”

Ellen Aprill, a tax law professor at Loyola Law School in Los Angeles who reviewed the same documents, called the filings “especially odd,” while cautioning further facts are needed before judging whether they are “inconsistent with the rule of law.”

Such potential IRS filing inconsistencies, JEP’s reactivation at the time when Thomas’ own nonprofit experiment fell apart and the large sums JEP has taken in and paid out make a compelling case for a closer look at how much money Thomas may have received from Leo-affiliated sources, said Eric Havian, a San Francisco attorney who has represented whistleblowers for more than 25 years and reviewed tax records at POLITICO’s request.

Whatever the state of their financial dealings, the personal and professional relationship between Thomas and Leo clearly remains strong.

Last year, Thomas came under fire over text messages revealing she pressured the Trump White House to challenge the 2020 election, a move that put renewed scrutiny on her husband, who had participated in cases related to the election. A day before the news broke, the Judicial Crisis Network, another part of Leo’s nonprofit constellation that is headed by Severino, launched a $1.5 million ad buy entitled “Misunderstood” that promoted Clarence Thomas and his judicial record.

Leo’s firm CRC Advisors has reportedly been the registered agent for several web domains related to Clarence Thomas and was responsible for promoting a PBS documentary on his life and audio and Kindle releases of his memoir.

In 2017, a conservative news site published remarks from what was supposed to be a private confab of conservative luminaries attending an awards ceremony honoring “heroes of liberty.” Ginni Thomas presented the newly created awards, including one to her one-time nonprofit business partner.

In introducing him, Thomas said Leo has “single-handedly changed the face of the judiciary,” and described him as a “disciplined strategist,” “wonderful father” and “mentor to me.”

Thomas also gave a nod to Leo’s role as a behind-the-scenes player.

“He has many hats,” she said. “That isn’t even all he does. He doesn’t really tell all that he does.”

Friday, August 11, 2023

Corrupt AF

Clarence (Rent-A-Judge) Thomas is dirty, and he has enough company at SCOTUS to give Trump a fair shot at getting himself off the hook.

Clarence Thomas is not a rich man. Not rich the way he's always wanted to be rich. Even at $300,000 a year, he's not rich.

Guys like Leonard Leo's gang of billionaire plutocrats know this. And they know Thomas can be treated to some of the mega-perks enjoyed by the über wealthy, which gives him the feeling of power he's always coveted, which gives them a pretty fair shot at getting what they want.

Power is what money is about. Every dollar is a Power Coupon.

If you have power, you can get money
If you have money, you can get power
You never see one without the other

Thomas has a lifetime membership in the most exclusive club in world, and he knows it's next to impossible to throw him out, and all he has to do is rationalize his way to making decisions that favor his plutocrat benefactors. And the kicker is that even when he's in the minority - when the court's decision goes against his paymasters' interests - he can still get paid for having dissented in their favor.


Accountability can't just be retroactive and remedial. It has to be preventative.



I think the problem we're faced with - how do we take appropriate action against an offender when the offense is obvious and action is warranted - is very much at the root of the opposing ideologies we're trying to deal with. I see it as a matter of having to combat the conservatives' insistence that "The Free Market" can and should be extended - to rid ourselves of this cumbersome democracy thing, and replace it with "Free Market Government".

The right wing has made it a cornerstone of their movement to stand against regulation at every opportunity. They believe the market will always correct for any harm being done by whatever company causing whatever problem. We know by history and experience that this is not true. And even if the company is "punished" retroactively by losing profits &/or taking a bad PR hit, the customers (aka: people) who have suffered because of that company's actions or neglect can never be truly made whole again.

So we have to do sensible things that mitigate risk and prevent harm, and that means we have to regulate.

This common sense approach has to be applied to government as well - especially when we're talking about a piece of the government that is currently holding itself above the law - believing it's not subject to the checks & balances that were written into the US Constitution.

Tuesday, July 18, 2023

SCOTUS

The federal judiciary is at an historical low approval.

  1. Code of ethics
  2. Term limits
  3. Expand the court

Friday, June 30, 2023

Fuckin' SCOTUS, Man

Seems like we just saw 6 people take it upon themselves to chip away at the rights of all Americans as they effectively repealed a good 10% of the 14th amendment.

I say this is the "judicial activism" that Republicans have been screaming about for decades.

Imagine that - conservatives accusing everybody else of doing exactly what they're been planning to do all along.




The Supreme Court Turns ‘Equal Protection’ Upside Down

In striking down affirmative action in higher education on Thursday, the Supreme Court’s conservative majority said it had to do so because the Constitution forbids any form of racial distinction. With a single opinion, the justices overturned decades of precedents that upheld race-conscious admissions policies as consistent with the 14th Amendment’s equal protection clause and ignored the reality of modern America, where prejudice and racism endure.

As Justice Sonia Sotomayor wrote in dissent, the decision cements “a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

The result of Thursday’s decision means the end of a system that provided decades of opportunity for thousands of students who might otherwise have been turned away from some of the nation’s biggest colleges and universities. The effects will be felt nationwide, and soon. In states that have already banned affirmative action in higher education, the percentage of Black students has dropped, in some cases dramatically. Black enrollment at the University of Michigan was 4 percent in 2021, down from 7 percent in 2006 before Michigan voters prohibited the consideration of race in college admissions. The story is similar in California, despite that state’s intensive efforts to recruit more minority students by other means.

That this ruling has been long anticipated does not change the context in which it was handed down. For the second time in just over a year, the Supreme Court tossed out a longstanding precedent intended, however imperfectly, to expand basic rights and freedoms to a large group of Americans who had suffered under a legal system that treated them as second-class citizens. Last year it was women seeking the constitutional right to have an abortion; this year it is chiefly Black and Latino students who want a shot at the economic opportunity that can come from a college degree.

Why now? Nothing has changed in either case — not public opinion, not the underlying facts, not even the behavior of the two schools targeted in the court’s decision, which were both following the guidelines the Supreme Court set out in a previous ruling on affirmative action in 2003.

Only one thing has changed: the court’s membership. With their supermajority now firmly in charge, the Republican-appointed justices have had free rein to upend swaths of American law in order to achieve long-held goals of the conservative movement. Ending any form of racial consideration has long been high on that list, part of a continuing effort to pretend that racial inequality no longer exists — what Justice Ketanji Brown Jackson described in her dissent as a “let-them-eat-cake obliviousness” to the role of race in daily life.

It has been the special project of an indefatigable right-wing activist named Edward Blum, who for years has coordinated the legal challenges to affirmative action, including the current lawsuits, which targeted race-conscious admissions practices at Harvard University and the University of North Carolina.

Thursday’s ruling, written by Chief Justice John Roberts and joined by all of the Republican-appointed justices, takes a long time to make a simple — and simplistic — point: There is no real difference between the centuries of racial discrimination against Black people and targeted race-conscious efforts to help Black people. Both are equally bad, in this view.

The chief justice has long adhered to this view of race. As he wrote in a 2007 case striking down race-conscious state programs aimed at integrating public schools, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It was a memorable line, because it flattered the commonly held belief that any race-based discrimination is not just wrong but unconstitutional.

The problem is that, as a matter of history, it’s not true. The 14th Amendment, ratified in the aftermath of the Civil War, was expressly intended to allow for race-conscious legislation, as Justice Sotomayor noted emphatically on Thursday. The same Congress that passed the amendment enacted several such laws, including the Freedmen’s Bureau Acts, which helped former slaves secure housing, food, jobs and education.

The bureau was an obvious and essential measure to remedy at least some of the harm that slavery inflicted on Black Americans. The first affirmative-action programs, a century later, had the same goal, only then it was necessary to address the decades of state-sanctioned discrimination against Black people that followed Reconstruction, and that continued to impose unique and specific hurdles to their ability to fully join American society. As President Lyndon Johnson said in a 1965 commencement speech at Howard University, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”

And yet despite the success of affirmative action programs in raising minority enrollment, or more likely because of it, the pushback was immediate. Allan Bakke, a white man rejected by the medical school at the University of California, Davis, said he was the victim of racial discrimination and filed a lawsuit. In a complicated split opinion in the 1978 Bakke case, the Supreme Court allowed race to be considered in college admissions, but only for the purpose of increasing diversity on campus, not as a way to alleviate the long-term effects of discrimination.

The focus on diversity was an orchestrated compromise meant to win over the court’s key swing justice, Lewis Powell. It worked, and yet at the same time it set the stage for affirmative action’s ultimate demise. By limiting it to a hard-to-define concept like diversity, the court opened the door to endless challenges. Some justices have asked, for example, why certain types of diversity mattered more than others. Why only racial diversity and not religious or political diversity?

But diversity — whether on campus, in business, or in government and society at large — remains a vital goal for any institution, and it will now be more difficult to achieve. The word is not a “trendy slogan,” as Justice Jackson wrote in her dissent. Diversifying medical schools by opening up the profession to Black physicians can save lives, she notes. Black infants, for example, are more likely to survive under the care of a Black doctor. Diversity also expands economic benefits and social understanding. A diverse student body, she wrote, means that “students of every race will come to have a greater appreciation and understanding of civic virtue, democratic values, and our country’s commitment to equality.”

What’s especially interesting in Thursday’s opinions is not where the justices disagree but where they agree: The Equal Protection Clause allows for race-conscious programs, as long as they are narrowly tailored to meet a compelling government interest. In fact, the opinion explicitly permits affirmative action in military academies, in what seems to be an acknowledgment that diversity in the armed forces remains a national priority. The real debate, then, is over exactly where to draw that line. What sort of harm is sufficiently clear and traceable to permit an exception to the 14th Amendment, and what isn’t? For nearly half a century, the court drew the line to permit affirmative action in higher education. On Thursday, it moved that line.

None of this is to deny the legitimate critique of affirmative action as it functions today. Unlike abortion rights, most Americans oppose race-based admissions programs for colleges, polls show. These programs have, for instance, been insufficient for addressing economic disparities, which are a crippling barrier to millions of Americans of all colors.

This and other shortcomings require their own solutions. This ruling against Harvard and University of North Carolina should be a call to action, for private and state universities alike, to create new paths to ensure that qualified students can find opportunity on their campuses. More evidence is needed around whether the most commonly proposed alternatives — giving a leg up to students from lower socioeconomic groups, for example, or admitting the top 10 percent of students from each high school in a state — boost minorities into better jobs and more stable lives.

Many schools, of course, already engage in one particularly insidious form of wealth-based affirmative action: legacy admissions. The children of alumni — who are overwhelmingly white — enjoy a far better chance than other applicants of getting accepted to the nation’s top colleges and universities, which, as this board has argued, constitutes “a form of property transfer from one generation to another.” It has a far larger impact on the racial and socioeconomic makeup of student bodies than race-based affirmative action ever has. At Harvard, an estimated 14 percent of students, most of whom are white, are there at least in part because of a legacy. Reducing or eliminating this practice could create new opportunities for all kinds of students who normally don’t have a chance of getting into a top school.

It’s nice to imagine an America where all people are treated the same, regardless of the color of their skin, but that is not the nation we live in today or ever have lived in. “Our country has never been colorblind,” Justice Jackson wrote. “Deeming race irrelevant in law does not make it so in life.”

This is a genuinely difficult task, but the solution is not to pretend that we have suddenly become colorblind. Any meaningful effort should take race into account. Th
at’s not only permissible under the Constitution; it’s the only way it has ever succeeded.

Thursday, June 29, 2023

Today's SCOTUS Fuckup


Clarence Thomas finally gets a little relief for his bruised ego self-loathing.

The guy got some of his schooling under Affirmative Action. I get the feeling he's always been eager to pull the ladder up behind him because he's spent 35 or 40 years listening to "conservatives" as they told him, almost straight up, that he didn't deserve anything he got because he stole the place that rightfully belonged to some white kid and blah blah blah.

Thomas has been gunning for Affirmative Action since before his appointment so this one may not look like some kind of outlier - unless...

Let's take Paranoid Mike's little tour and see how we might get to these odd-seeming decisions.


First: 
All of these "conservative" justices were chosen for nomination specifically to address particular pieces of the Project Plutocracy agenda. They've all been groomed and placed on the court in order to have a desired effect on whatever items their handlers deem appropriate at any given time.

Second:
Nobody is outright buying decisions from this court. That's totally illegal, and even though these dark-money yacht-buying assholes don't really care about following the law, they don't have to do it that way.

They pick a justice they're pretty sure is sympathetic to their side of the issue-du-jour, and they treat that justice to a really spiffy time at an exotic vacation spot, or they arrange a nice little junket to speak to a group of 'concerned citizens', having arranged for the justice to receive a right handsome honorarium from a grateful bunch of just regular hard-working Americans.

And they do all of that well before they start any legal action. 

The point of the exercise is to make all the legal steps fit with an overall strategy - combining political campaign funding, Voter Education SuperPACs, advertising and other media manipulation - together with some client head-hunting in order to get the right people with the right standing, in front of the right judges in the right lower courts, making the right arguments based on whatever loophole, gray area, or cockamamie "theory" they can come up with.

As the case works its way through the system, they keep refining the terms and testing the arguments on focus groups and OpEd pages and white papers and speeches and and and.

I'm betting it's way more gnarly and complicated than the picture I have in my cluttered little brain, but no matter how twisty-turny it gets, or how carefully it's set up, there can be surprises - it doesn't always work.

But this is Political Capitalism, and the players are going to do everything possible to be sure they know the outcome before the voting even starts.

We're told all our lives that we really don't want to see how they make the sausage - and we've been able to convince ourselves the ugliness of it was pretty well concentrated in the Legislative Branch. And maybe they've been mostly right. But this is definitely not the case now - not anymore.


Affirmative Action
Supreme Court Strikes Down Race-Based Admissions at Harvard and U.N.C.

The 6-3 ruling could drastically alter college admissions policies across the country. Criticizing the decision, President Biden said this was “not a normal court” and directed the Education Department “to analyze what practices can build a more inclusive and diverse” student body.
ImageActivists celebrate the affirmative action opinion at the Supreme Court in Washington, D.C. on Thursday.
Credit...Kenny Holston/The New York Times