Jan6 Stuff

Jon Stewart with Anne Applebaum

Taking the death of democracy global.

Political Dodge Ball

Matt Schlapp goes on Ari Melber's show to try out the new GOP bullshit talking points.

1. Biden was sworn in as president because Democrats committed fraud, but no - I'm not saying the election was stolen.
2. The GOP's What-About bullshit du jour: Vandalism during the BLM protests of 2020 was just as bad as MAGA sedition on Jan6. 

Don't Sleep On This

Nancy MacLean

The plutocrats are very serious and very busy.

(pay wall)

Opinion
A $1.6 billion donation lays bare a broken campaign finance system

One man has donated $1.6 billion to a nonprofit group controlled by a conservative activist who has crusaded, with startling success, to transform the country’s politics. The only reason the public knows about it? An insider tip-off to the New York Times.

The Times reported this week that electronics mogul Barre Seid last year gave 100 percent of the shares of surge protector and data-center equipment manufacturer Tripp Lite to a group called Marble Freedom Trust. The group is led by Leonard Leo — who has helped bankroll right-wing advocacy on abortion rights, voting and climate change, among other things. His chief focus for a time was reshaping the judiciary as executive vice president of the Federalist Society, including by advising Republican presidents on Supreme Court nominees. The tale of how his group got such a lavish gift underscores the sad state of this country’s campaign finance system.

The Marble Freedom Trust donation, possibly the largest ever to such an advocacy group in U.S. history, manages to encapsulate in a single case the problems with the status quo. The issue isn’t merely the distortion of democracy enabled by 2010′s Citizens United v. Federal Election Commission. That decision allowed for unlimited political spending by corporations and outside groups — to which, in turn, the ultra-wealthy can funnel unlimited funds of their own. The issue is also that the distortion remains, in most cases, invisible. Nonprofits groups registered as 501(c)(4)s, such as Marble Freedom Trust, don’t have to disclose their donors.

Adding insult to injury, donors can also use these nonprofits to reduce taxes — in this instance, to the tune of somewhere around $400 million. To sell his company on his own, Mr. Seid would have had to pay capital gains taxes, leaving him with less to bequeath to Marble Freedom Trust. But as supposed “social welfare organizations,” 501(c)(4)s are exempt from paying taxes. So instead he handed his shares over to the trust, which then itself sold Tripp Lite: for the $1.6 billion now in Mr. Leo’s coffers. As a result, dutiful everyday taxpayers essentially finance the extravagant expenditures of the privileged few, who use their know-how to avoid their obligations and twist the political landscape.

Congress should close the tax loophole these donors exploit. And the Disclose Act, some version of which has been languishing in Congress for more than a decade, blocked by GOP filibusters, would at least tell voters who’s trying to buy their votes. The Internal Revenue Service can improve things on its own by collecting donors’ information again, after it stopped in 2018. Unfortunately, without a change in Supreme Court precedent or a constitutional amendment, only marginal improvements are possible.

Mr. Leo defended his gambit by saying it is “high time for the conservative movement to be among the ranks of George Soros, Hansjörg Wyss, Arabella Advisors and other left-wing philanthropists, going toe-to-toe in the fight to defend our constitution and its ideals.” Really, it’s not toe-to-toe but billions-to-billions — and neither side should be proud of that.

Fixing A Hole

And since it's a good and sensible idea, we can expect Joe Manchin and asshole Republicans to vote against it.

(Joe Manchin and asshole Republicans - sorry for that bit of redundancy)

In the end, we have to realize that our democracy - our entire civilization - is wholly dependent on honorable people behaving honorably.

And that brings me back to what I was lamenting 15 years ago.

ie: I'm afraid we're moments away from the point where this glorious ideal we call America will be all but dead, and we'll just be arguing over who gets to do what with the corpse.

But - I can still be hopeful, even as my optimism is sorely tested.

WaPo: (pay wall)

Opinion - The new proposal to prevent a future coup is surprisingly good

As we reported this week, a bipartisan group of senators has been negotiating over complicated reforms designed to thwart a rerun of Donald Trump’s coup attempt. The reforms revise the Electoral Count Act of 1887, which governs how Congress counts presidential electors.

Now, the bill’s text has been released. It’s very similar to what we reported on previously, and the proposal turns out to be a surprisingly good one. All it needs is 60 votes in the Senate.

The simplest way to grasp what this proposal does is to look at what Trump attempted in 2020, and what another losing candidate could attempt next time. What does the new bill do to prevent these things?

Here goes.

Trump pressured state legislatures to appoint electors for him in defiance of the popular vote (they refused). He pushed congressional Republicans to object to Joe Biden’s electors (which partly succeeded, but not by enough). He pressured his vice president to illegally delay that electoral count so he could go back to pressuring the states again (which was rebuffed).

An imitator might attempt a variation on that scheme. He might get a future state legislature to appoint fake electors for him despite losing the popular vote, with the complicity of a corrupt Republican governor — say, a Gov. Doug Mastriano of Pennsylvania — who would certify those electors.

That imitator might then prevail on the Congress — say, one controlled by a House Speaker Jim Jordan and a Senate Majority Leader Ted Cruz — to count the electors appointed by that legislature and certified by that rogue governor. That could tip a close election.

So here’s how the new proposal would address all these points.

First, and importantly, the proposal would require a state to appoint presidential electors in the manner dictated by the state’s laws as they existed before Election Day. As long as every state’s laws require appointment of electors in keeping with the popular vote, this would prevent a state legislature from appointing electors in defiance of that vote.

Second, the proposal would require the governor to certify the correct electors by a hard deadline before Congress counts them. This is supposed to prevent a governor from certifying the electors for the losing candidate.

What if a state legislature and governor simply ignored those requirements and their constitutional duty?

Well, the proposal would allow an aggrieved candidate to trigger expedited judicial review by a federal three-judge panel, subject to expedited Supreme Court appeal. Under the proposal, Congress would be required to count the electors that the courts deemed the correct one.

Here’s the basic principle at play: The aim is to close off manipulation of the process at both the state and congressional ends. In the proposal, Congress bars state legislatures and governors at the front end from breaking their own laws (or the Constitution) dictating the appointment of electors. If they do so anyway, it triggers automatic judicial review and then requires Congress to count the correct electors at the back end.

“This proposal effectively constrains both state officials and Congress to count the true electors,” legal scholar Matthew Seligman, an expert on the ECA, tells us.

The proposal also clarifies that the vice president’s role is purely ceremonial (to preclude disrupting the count). And whereas the ECA currently requires one member from each congressional chamber to force a vote on whether to invalidate electors, the proposal would require one-fifth of each chamber to force that vote.

All this raises difficult questions. For example, can we count on the federal courts to do the right thing?

The problem is someone has to have the last word on which presidential electors count. If not federal courts, would you prefer that last word fall to Speaker Jordan and Majority Leader Cruz?

You could also fall back on state courts as the first judicial backstop. “But state supreme courts can be dominated by partisans too,” Seligman says, “and any such litigation would ultimately end up in the Supreme Court anyway.”

Another thorny issue: Can a current Congress bind a future Congress to count only electors the courts deem legitimate?

That’s a hard question. But it’s plausible a future Congress would have to repeal this new law to relieve itself of that obligation. Which it could do, but that would require a presidential signature, and all that would be hard to pull off amid a contested post-election crisis.

Which raises a final question: What if every actor in the system is corrupted?

What if a state legislature and governor certify the wrong electors? What if a corrupted Congress wants to count those electors? And what if the federal courts — including the Supreme Court — bless those wrong electors as well?

The process of writing this bill has revealed that if enough actors are determinedly corrupt and dominate all corners of the system, there’s no bulletproof set of protections. In the end, making this as difficult as possible may be the only option.

The bill does that, according to Adav Noti, vice president and legal director of the Campaign Legal Center. But, Noti cautions, if all those actors “conspire to subvert an election, there’s not a whole lot you can put on paper that will stop that.”

And that’s when the street fighting starts. If it hasn’t started already.

The Other Malcom

Malcom Nance gets a little shouty sometimes most times, but I have to acknowledge that he's been right about an awful lot of stuff.

MSNBC - Tiffany Cross

GOP Fuckery

Republican fuckery is - and has been - costing us dearly. And not just in terms of jobs, and wages, and prices, and competitive advantage, and rights, and and and.

For generations, they've been chipping away at the institutions every modern-era democratic society relies on to sustain itself.

It's good to hear that even a Press Poodle like Dana Milbank has finally gotten the word on this shit.

WaPo: (pay wall)

Opinion
How Republican leaders broke Americans’ confidence

On Tuesday, the venerable Gallup organization reported that just 27 percent of Americans expressed confidence in their institutions — the lowest level of trust since the questions were first asked half a century ago.

On Wednesday, Mitch McConnell showed us why Americans feel this way.

Republican senators announced that, under orders from the Senate Republican leader, they were pulling out of House-Senate talks finalizing details on bipartisan legislation to help the United States compete with China on semiconductor chips.

It wasn’t because McConnell objected to the China bill; he was one of 19 Republican senators who voted for the Senate’s version. It’s because he objects to a second, unrelated bill Democrats are working on to lower prescription drug prices.

McConnell wants to stop Democrats, including Sen. Joe Manchin III (W.Va.), from using a process known as “reconciliation” to pass that prescription-drug bill by a simple majority vote, immune from any GOP filibuster. And to stop Americans from getting cheaper prescriptions, he is willing to sabotage American manufacturers (and therefore assist China) by denying them $52 billion in support under the U.S. Innovation and Competition Act.

In both cases, Americans lose — because McConnell thinks it’s to Republicans’ advantage in the midterm elections. He is willing to hurt the country, and help the Chinese, in order to harm Democrats’ political standing.

“Let me be perfectly clear: there will be no bipartisan USICA as long as Democrats are pursuing a partisan reconciliation bill,” he tweeted.

And let me be perfectly clear: This cynicism has destroyed Americans’ faith in their government.

You can see it in this year’s edition of the annual Gallup poll on 14 U.S. institutions: Congress, the presidency, the Supreme Court, the military, business, police, media, churches, schools and more. The average confidence level, 27 percent, has declined from 46 percent in 1989.

Though opinions of individual institutions vary widely among groups, the overall distrust of institutions is universal — with little variation by gender, age, race, education or even party.

Though the economic and political cycles play some role, Gallup’s Jeffrey M. Jones, who led the study, tells me that the declining confidence is more because of a “general idea of government not being able to address the problems facing the country.”

That’s backed up by other data. Two decades ago, just 5 percent cited the government as the most important problem facing the country. That reached 32 percent for 2019, and has remained at or above 20 percent for the years since then.

This is no accident. For three decades, as the Republicans transitioned from a limited-government party to an anti-government party, GOP leaders have seen political advantage in undermining Americans’ confidence in their institutions, and in sabotaging the functions of government. That’s a major theme of my book, out next month, “The Destructionists: The Twenty-Five-Year Crack-Up of the Republican Party.”

It began with Newt Gingrich’s instructions to Republicans on how to refer to Democrats (and the government) in 1990: “Traitors.” “Corrupt.” “Cheat.” “Decay.” “Failure.” “Incompetent.” “Abuse of power.” As the era of government shutdowns, default brinkmanship, hostage-taking, name-calling and mindless obstruction was just beginning, Vice President Al Gore presciently remarked: “The Republicans are determined to wreck Congress in order to control it — and then to wreck a presidency in order to recapture it.”

McConnell played a major part in the sabotage, and not just with his extravagant intransigence toward legislation and nominees, highlighted by the theft of a Supreme Court seat in 2016.

In 2009, he urged the Obama administration to support legislation creating a debt-reduction committee — and then opposed the legislation after the Obama administration supported it. In 2012, he threw his support behind a majority vote on a debt-ceiling proposal — and then, when it appeared the bill would pass, he said he would block it with a filibuster.

Now, we see the fruits of such labors.

After Republicans’ years of throwing sand in the gears of government, just 7 percent have confidence in the legislature and 23 percent in the presidency. After Republicans’ use of underhanded tactics to secure a highly partisan supermajority on the Supreme Court, just 25 percent have confidence in the high court. After years of Republicans’ attacks on the media (culminating in Trump’s “enemy of the people” formulation) and after the GOP’s fostering of propaganda outlets such as Fox News, just 11 percent of Americans have confidence in television news (16 percent in newspapers).

They’ve hacked away at public schools (critical race theory! trans athletes!), at the “broken” military and at the criminal justice system (“corrupt” FBI and Justice Department leaders) — and Americans’ trust in those institutions has slipped, too.

Now, against all odds, Washington is on the cusp of lowering drug prices and boosting U.S. technology over China’s. And so, McConnell, top Senate Republican, steps in to sabotage both.

It doesn’t exactly inspire confidence.

Alarm Bells

SCOTUS may well be in the process of overturning the rule of law itself.

Vox:

The post-legal Supreme Court

What happens if the Court rejects the rule of law?

The highest Court in the most powerful nation in the world appears to have decided that it only needs to follow the law when it feels like it.

Last December, for example, the Supreme Court handed down a decision that fundamentally alters the Union — giving states sweeping authority to restrict their residents’ constitutional rights.

At least, that’s what happened if you take the Court’s 5-4 decision in Whole Woman’s Health v. Jackson seriously. Jackson involved Texas’s anti-abortion law SB 8, which allowed “any person” who is not employed by the state to sue anyone they suspect of performing an abortion after the sixth week of pregnancy, and to collect a bounty of at least $10,000 from that abortion provider. The Court allowed that law to take effect, even though abortion was still considered a constitutional right at the time.

If you apply the logic from Jackson more broadly, any state could pass a law unleashing such litigious bounty hunters upon people who exercise any constitutional right. Perhaps a state wants to make it illegal to own a gun, or maybe it wants to allow bounty hunters to sue any Black family that sends its child to a predominantly white school — and the federal judiciary will simply stand back and let it happen. Realistically, the Court is unlikely to allow these sorts of attacks. But to spite abortion, the conservative majority was willing to open the door to them.

Jackson, moreover, was only the beginning of a Rumspringa of conservative excess led by the Court’s Republican-appointed majority.

In its just-completed term, the Supreme Court overruled Roe v. Wade, permitting states to ban abortions without having to resort to SB 8-style chicanery. It also overruled a seminal 1971 decision prohibiting the government from advancing one religious belief at the expense of others. It all but neutralized another half-century-old precedent permitting federal law enforcement officers who violate the Constitution to be sued. And the Court’s Republican majority dismantled two decisions protecting criminal defendants who were convicted or sentenced without adequate defense counsel, most likely condemning an innocent man to die in the process.

The Court endangered huge swaths of long-existing gun laws, striking down a New York state law that has been on the books for 109 years. And it did so in an opinion that simultaneously fetishizes the “Second Amendment’s plain text,” while ignoring the first thirteen words of that amendment.

The same Court that attacked Roe as “remarkably loose in its treatment of the constitutional text” saw no problem with ignoring half of the text of the Second Amendment.

In what may be the most consequential environmental case in decades, the Court relied on something called the “major questions doctrine” — a fairly new legal doctrine that is never mentioned in the Constitution or in any statute and that was invented entirely by judges — to strip the Environmental Protection Agency of much of its authority to fight climate change.

The Court even abandoned any pretense that it must be honest about the facts of the cases it decides, claiming that a public school football coach who ostentatiously prayed on the 50-yard line after games — while surrounded by players, spectators, and members of the press — was merely engaged in a “short, private, personal prayer.”

It was a singularly alarming Supreme Court term. The Court didn’t simply abandon longstanding legal rules, at times it seemed to abandon the rule of law altogether.

What is “the rule of law”?

I make a strong claim in this essay, arguing that the Supreme Court of the United States is no longer deciding many major cases in a way that is recognizably “legal.” So let’s start by establishing a baseline definition of what constitutes the rule of law and what it means for a judge to act consistently with this principle.

Societies that adhere to the rule of law must apply the same binding rules to all persons and institutions, including the state itself. According to the United Nations, these rules must be “publicly promulgated, equally enforced and independently adjudicated,” and the rule of law demands “equality before the law,” “legal certainty,” and “avoidance of arbitrariness.”

The late Justice Antonin Scalia offered one of the best explanations of how a judge can act consistently with the rule of law in a 1989 essay. “When, in writing for the majority of the Court, I adopt a general rule,” Scalia explained, “I not only constrain lower courts, I constrain myself as well.” Because “if the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences.”

Scalia’s formulation captures the rule of equality before the law. If a judge applies a certain rule to Republicans, they must be comfortable applying it to Democrats as well. If they apply one rule to people who oppose abortion, they must apply the same rule to people who support abortion.

Similarly, Scalia’s formulation advances the values of legal certainty and non-arbitrariness. While there are extraordinary circumstances when the Supreme Court should overrule one of its previous precedents, lawyers and lawmakers should typically be able to look at the Court’s past decisions and be able to predict how the law will apply moving forward. When possible, the Supreme Court should hand down clear legal rules which enhance this predictability and that cannot easily be manipulated to hand down arbitrary decisions that favor some groups over others.

With these principles of equality, clarity, and non-arbitrariness in mind, let’s take a look at some of the Court’s recent decisions.

Whole Woman’s Health v. Jackson is one of the worst decisions in the Supreme Court’s history

There are a handful of Supreme Court decisions that legal scholars refer to as the “anti-canon,” decisions that were so poorly reasoned and monstrous in their consequences that they are taught to law students as examples of how judges should never behave. The anti-canon includes cases like the pro-slavery decision in Dred Scott v. Sandford (1857), the segregationist decision in Plessy v. Ferguson (1896), the anti-worker decision in Lochner v. New York (1905), and the Japanese-American internment decision in Korematsu v. United States (1944).

Whole Woman’s Health v. Jackson belongs on this list. It is, as Chief Justice John Roberts wrote in dissent, so thoroughly inconsistent with the idea that the Constitution binds every state government that it threatens to transform that document into a “solemn mockery.” Jackson introduces an intolerable amount of unpredictability and arbitrariness into US law, transforming the constitutional rights that every American should reasonably be able to rely upon into dust that can be blown away by a sufficiently clever state legislature.

So long as Jackson remains good law, no constitutional right is safe.

To understand why Jackson is so troubling and why it threatens literally all constitutional rights, it’s helpful to understand why Texas wrote this law to rely on private bounty hunters.

As a general rule, someone who believes that a state law violates their constitutional rights cannot sue that state directly in federal court. Under the Court’s decision in Ex parte Young (1908), however, they may sue the state officer tasked with enforcing an allegedly unconstitutional law. Thus, for example, if a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state police to block that law.

But SB 8, the anti-abortion law at issue in Jackson, attempts to cut state officers out of the enforcement process altogether. SB 8 provides that it “shall be enforced exclusively through ... private civil actions” that can be filed by anyone who is not a state employee.

It should be noted that Texas lawmakers did not actually succeed in writing a law that no Texas state official plays a role in enforcing. The plaintiffs in Jackson sued a Texas state judge who would hear lawsuits brought under SB 8, as well as the clerk of a Texas court charged with moving these cases through the courts. If Young means anything, these plaintiffs should have been allowed to move forward with their federal lawsuit.

But Gorsuch’s majority opinion in Jackson holds that these suits against Texas state judges and clerks may not proceed. That means there’s no way to obtain a federal court order halting SB 8.

In fairness, an abortion provider could have conceivably waited until they were sued in Texas state court for violating SB 8, and then argued that SB 8 violates Roe v. Wade in state court. But even if Roe were still good law, this defense is not adequate to protect abortion providers’ rights.

That’s because SB 8 doesn’t simply allow any person who is not employed by the state of Texas to sue an alleged abortion provider, it also permits a victorious plaintiff to collect a bounty of at least $10,000 from the provider. There is no upper limit to this bounty, and an alleged abortion provider who successfully defends against an SB 8 lawsuit can still be sued by other individuals hoping to collect the bounty.

Anyone suspected of performing an abortion that violates SB 8 could be hit by hundreds or even thousands of lawsuits. And they would either have to hire an army of lawyers to defend against these lawsuits or risk being ordered to pay a bounty that has no upper limit. Either option risks bankruptcy.

If taken seriously, moreover, Jackson permits states to use an SB 8-like structure to attack any constitutional right. A state might allow private bounty hunters to sue any journalist who publishes a news article that paints a Republican elected official in a negative light, or it might prohibit private citizens from criticizing the state’s governor. Shortly after Jackson was handed down, Democratic California Gov. Gavin Newsom threatened to sign a law permitting private bounty hunters to sue anyone who “manufactures, distributes, or sells an assault weapon.”

It remains to be seen whether this Court would apply its Jackson decision to a state law attacking the Second Amendment or other constitutional freedoms. But if the Court winds up applying Jackson only to constitutional rights that a majority of its members do not like, that’s an even worse outcome for the rule of law than if it applies Jackson’s anti-constitutional rule to every SB 8-style law that makes it through any state legislature.

The rule of law is the rule of equality; it means that the same rules must apply to liberal litigants as apply to conservatives.

The Supreme Court placed itself at the head of much of the executive branch of government

In its late June decision in West Virginia v. EPA, the Court effectively placed itself at the head of multiple executive branch agencies — above President Joe Biden — giving itself veto power over any regulation handed down by these agencies. In doing so, it fundamentally reshaped the US’s separation of powers.

Many federal laws lay out a broad overarching policy, then give an executive branch agency authority to implement that policy through binding regulations. West Virginia concerned a provision of the Clean Air Act, which requires certain power plants to use the “best system of emission reduction” that can be achieved with currently available technology, and then tasks the EPA with determining what the “best system” to reduce emissions may be at any given moment.

This way, as technology evolves to allow cleaner energy production, the EPA can issue new regulations requiring the energy industry to adopt these cleaner technologies, without Congress having to pass a whole new law.

West Virginia imposed an arbitrary new limit on EPA’s congressionally given authority, which appears nowhere in the Clean Air Act or in any other federal law. Under West Virginia, the EPA may not use its authority to encourage “generation shifting” — that is, requiring the energy industry to shift from particularly dirty methods of energy production, such as coal, and toward cleaner methods such as solar or natural gas. Instead, the EPA may only use its authority to require existing coal plants to install new devices or otherwise alter how they burn coal to produce energy.

To justify its policy judgment that generation shifting is not allowed, the Court’s six Republican appointees relied on something called the “major questions doctrine.” Under this doctrine, the Court explained in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.

But the Court has never fully articulated what causes a regulation to be so significant that it runs afoul of this doctrine, and, in any event, the doctrine comes from nowhere.

The Constitution does not mention this doctrine. Nor does any federal law. The Court has, in effect, given itself the power to veto any regulation issued by the executive branch of government, even when Congress broadly authorized an executive branch agency to regulate.

Until very recently, the justices avoided such encroachments upon the executive’s domain. As the Court explained in Mistretta v. United States (1989), “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Until a few years ago, the Court’s decisions urged judges to defer to federal agencies on nearly all policy-related questions.

The reasons for this deference were twofold. As the Court explained in Chevron v. Natural Resources Defense Council (1984), agencies typically have much greater expertise in the areas that they regulate than the judiciary. And federal agencies also have far more democratic legitimacy than unelected judges who serve for life. “While agencies are not directly accountable to the people,” the Court said in Chevron, agencies answer to a president who is accountable to the voters. And so “it is entirely appropriate for this political branch of the Government to make such policy choices.”

But now the Court has given itself the power to declare any regulation that it does not like to be a sin against the “major questions doctrine,” and in so doing to veto that regulation. That doesn’t just introduce far too much arbitrariness into federal law. It’s also an extraordinary transfer of power away from an elected branch of government and toward a judiciary staffed by unaccountable judges.

The Court does not behave as though it is bound by legal texts

The Second Amendment is unusual in that it states explicitly what purpose it is supposed to advance. It provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” As the Supreme Court held in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias, and the amendment must be “interpreted and applied with that end in view.”

Nevertheless, the Supreme Court held last month, in New York State Rifle & Pistol Association v. Bruen, that “individual self-defense is ‘the central component’ of the Second Amendment right,” and that gun regulations must be judged according to whether they undercut this atextual purpose.

I don’t think much more needs to be said about Bruen (although if you want to read a longer critique of Justice Clarence Thomas’s majority opinion in this case, I wrote that piece here). The Second Amendment’s text is crystal clear about why that amendment exists. But six Republican appointees on the Supreme Court believe the Second Amendment should have a different purpose. So they decided that the text of the Constitution does not matter. That is the very hallmark of an arbitrary decision.

And it’s not the first time this Court has disregarded legal text to reach a certain end.

About a year ago, in Brnovich v. DNC (2021), the Supreme Court invented a bunch of new limits on the Voting Rights Act — the landmark law prohibiting race discrimination in elections — that appear nowhere in the law’s text. As Justice Elena Kagan wrote in dissent, Justice Samuel Alito’s majority opinion in Brnovich “mostly inhabits a law-free zone.” No lawyer could have read the text of the Voting Rights Act and predicted the specific limits the Court placed on voting rights in Brnovich.

Similar things could be said about most of the Court’s recent voting rights decisions. In Shelby County v. Holder (2013), for example, the Court neutralized a provision of the Voting Rights Act that requires states with a history of racist election practices to “preclear” any new voting rules with federal officials before those practices can take effect. Shelby County rested on a so-called “‘fundamental principle of equal sovereignty’ among the States” that appears nowhere in the Constitution,

Indeed, the Constitution’s text indicates that Congress has broad power to decide how to protect voting rights. Its 15th Amendment provides that states may not deny or abridge the right to vote “on account of race, color, or previous condition of servitude,” and it gives Congress the power “to enforce this article by appropriate legislation.”

This year, the Court took similar liberties with voting rights law, handing down at least three “shadow docket” decisions that abridged the right of Black Americans to cast a vote that actually matters. In Merrill v. Milligan and Ardoin v. Robinson, the Court reinstated racially gerrymandered maps in Alabama and Louisiana that effectively cut Black voters’ electoral power in those states in half. And in Wisconsin Legislature v. Wisconsin Elections Commission, the Court struck down state legislative maps due to concerns that they may give too much electoral power to Black voters.

The Court provided little or no explanation for why it reached these decisions, but the common theme is that a majority of the justices voted to reduce Black electoral power in all three cases. And the Court plans to hear the Merrill case again in October — most likely so that it can permanently weaken the Voting Rights Act’s safeguards against racial gerrymandering.

The Court claims the power to decide what happened in the past

One other theme from this recent term is worth mentioning. In three major constitutional cases involving three very different provisions of the Constitution, the Court ruled that judges must look to historical practice when interpreting the nation’s founding document.

In the Bruen guns case, the Court held that “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation” if it wishes to defend a gun law against a Second Amendment challenge. In Dobbs v. Jackson Women’s Health Organization, the case overruling Roe, the Court declared that rights that are not specifically mentioned in the Constitution may only be protected by courts if they are “deeply rooted in this Nation’s history and tradition.” And, in Kennedy v. Bremerton School District, the praying coach case, the Court decreed that the provision of the First Amendment requiring separation of church and state “must be interpreted by ‘reference to historical practices and understandings.’”

One glaring problem with this approach to constitutional law is that history is contested, and even expert historians frequently disagree about the right way to interpret historical events. So this new historicism inevitably invites arbitrary and unpredictable decision-making by judges.

In the Bruen case, for example, both Thomas’s majority opinion and Justice Stephen Breyer’s dissent waste a simply mind-numbing amount of ink recounting centuries of gun laws stretching at least as far back as a 1328 law providing that Englishmen may not “ride armed by night nor by day, in Fairs, Markets.” In the end, the six Republican appointees conclude that this multi-century tour of English and American gun laws supports the policy outcome preferred by the Republican Party; and the three Democratic appointees look at the exact same history and conclude that it supports the policy outcome preferred by the Democratic Party.

Similarly, while Alito’s Dobbs opinion concludes that a right to abortion was “entirely unknown in American law” before the latter part of the 20th century, the Roe opinion reached the opposite conclusion, concluding that the historical practice was to allow abortions prior to “quickening” — “the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy.” At least some actual historians have argued that Alito is wrong and Roe was correct about this point.

In any event, I, like Samuel Alito, am a lawyer and not a historian. I, like Clarence Thomas, do not have a doctorate in history or any formal training in how professional historians resolve historical debates. I do not claim any ability to resolve what people in 1789 might have thought about laws banning assault rifles that didn’t yet exist, or whether the generation that ratified the 14th Amendment would have believed that mifepristone should be legal.

I will note, however, that the entire judiciary is staffed by lawyers and not historians, and that judges typically decide cases based on briefs authored by lawyers who are not historians. So the Court’s penchant for turning constitutional cases into debates over history is likely to produce a lot of bad history and a lot of bad law. It’s a bit like demanding that the nation’s public health policy be determined by a panel made up entirely of physicists.

And that’s assuming that these amateur historians, now tasked with determining whether the 17th-century jurist Sir Matthew Hale would have supported a ban on machine guns, are acting in good faith. Which brings us back to the Court’s factually challenged decision in Kennedy.

Recall that, in Kennedy, six of the justices couldn’t tell the difference between a “short, private, personal prayer” and a public spectacle even after they were confronted with photographic proof that Coach Kennedy decided to make a public spectacle of himself. If these judges are so loose with the facts of a well-documented event that occurred in 2015, imagine the liberties they may take with truly contested events that occurred nearly 250 years ago.

This Court has no sense of humility

Not so long ago, the Court had a very good solution to the problem that the meaning of legal texts — not to mention historical events — is often contested even by subject-matter experts operating in good faith.

Cases like Mistretta and Chevron counseled judicial deference to federal agencies because it is better for agencies accountable to a democratic president to resolve contested policy questions than to leave these questions to the one unelected branch of government. Other cases, such as United States v. Carolene Products (1938), warned that courts should typically defer to Congress when it was unclear whether the Constitution permits a particular law to stand. The advantage of this approach is that the people can always vote out a Congress that passed a bad law, but if the Court hands down a bad decision, there is often no solution other than a constitutional amendment.

The current Court hasn’t simply abandoned these doctrines of deference, it appears to be replacing them with new doctrines that don’t so much constrain judicial power as require judges to rely on historical sources when striking down laws that those judges don’t like. In cases involving federal agencies, that can mean the new doctrines require judges to use the magic words “major question” whenever they want to veto a regulation.

And this new era of judicial self-empowerment is only just beginning.

Another Beau For Today

Justin King - Beau Of The Fifth Column

Moore v Harper - for all the marbles.

Jan6 Stuff

Constitutional democracies are rarely destroyed by a single blow. Their citizens often sleepwalk into catastrophe, discovering too late that a degree of timely vigilance could have preserved their system of self-rule.

WaPo: (pay wall)

This is why the work of the House committee investigating the Jan. 6 insurrection is so important. Its public hearing Thursday was a red alert.

Using less than two hours of prime-time television, the committee issued an urgent plea: Americans must understand the violence they saw on that winter day in 2021 as nothing less than what Rep. Bennie G. Thompson (D-Miss.), the committee chair, called “an attempted coup.”

Attempted coups have authors, and with a steely, matter-of-fact eloquence worthy of history’s most able prosecutors, Rep. Liz Cheney (R-Wyo.), the vice chair, indicted Donald Trump in every sense but the formal one.

After watching Cheney pile fact upon fact and make connection after connection, the actual prosecutors in the Justice Department (and local prosecutors in Georgia) will have little choice but to issue the actual legal indictments that the treasonous conspiracy of Jan. 6 requires.

The nation must be clear on this: Failing to achieve accountability for the Jan. 6 insurrection, in the courts and at the ballot boxes, will amount to issuing a license for the enemies of democracy to do this all over again.

Cheney’s standing as a loyal conservative Republican certainly added to her credibility and guarantees her a place on history’s honor roll. But even more critical to her success Thursday night was her understanding of the obstacles before her. She needed to overcome the temptation of the complacent to write off the desecration of our seat of government as the work of mad extremists disconnected from the broader political system.

No. Foes of democracy regularly use mobs for their purposes, and these criminals were acting in concert with the president of the United States. Cheney proved — yes, beyond a shadow of a doubt — that the assault on the counting of the electoral vote was planned, and that thuggish, far-right Proud Boys and Oath Keepers and the rest were part of something bigger. One man set this attempted putsch in motion.

“President Trump,” Cheney declared, “summoned the mob, assembled the mob and lit the flame of this attack.”

Speaking to the part of her audience made up of Justice Department lawyers, Cheney used the evidence the committee gathered to underscore that Trump knew his election-rigging claim was a gigantic inflammatory lie. It was devastating to see former attorney general William Barr on video calling Trump’s assertions “bulls---,” and to learn that the former president’s own data mavens told him they were false. Trump’s daughter Ivanka was on video saying she believed Barr, not her father.

Key to prosecuting Trump will be proving his corrupt intent. The liar will claim innocence by insisting he truly “believed” that the election was stolen. The more evidence there is that he knew perfectly well that he was peddling, well, “bulls---,” the harder it will be for him to evade the consequences of his actions. Even the most practiced con artists get caught out eventually.

Last, Cheney showed that the mayhem was part of a much broader effort to subvert a free election. She contrasted Trump’s unquenchable will to power with the loyalty of fellow Republicans — at the federal, state and local levels — to the Constitution and the democratic process. Again and again, Trump attacked then-Vice President Mike Pence’s refusal to throw out legitimately chosen electors, even at moments when Pence’s life was in danger.

Cheney did not just let this hang there. “Aware of the rioters’ chants to ‘hang Mike Pence,’” she said, “the president responded with this sentiment: ‘Maybe our supporters have the right idea,’ and Mike Pence ‘deserves’ it.” (Trump has denied saying that.)

If holding Trump accountable is “partisan,” that makes standing up for one of the most conservative Republican vice presidents in history “partisan,” too. And if the story being told is “partisan,” why are so many of the credible witnesses Republicans?

This goes to one other aspect of authoritarian practice that the committee is confronting: Abusers of power cultivate cynicism. Trump’s defenders do not want Americans to grapple with the facts. They want people to believe that there are no truths at all, just selfish interests. Let it go, they say, it’s old news.

In describing the “war scene,” “carnage” and “chaos” of Jan. 6, Caroline Edwards, a U.S. Capitol Police officer badly injured by the Trumpist mob, provided the antidote to this poisonous indifference.

To ignore the war on our Constitution that Trump unleashed is to break faith with Edwards and all the other guardians of our republican traditions. At the very least, Thursday’s hearing showed that defenders of democracy have a fighting chance to awaken a brooding and preoccupied nation.

About Your "Rights"

In a system of 3 co-equal branches of government, where checks and balances are supposed to keep each of the branches from overstepping its authority, how exactly do we hold the SUPREME COURT accountable?

How does Congress pass a bill intended to rein in a SCOTUS that seems to be running afoul of the document its supposed to be helping us enforce and keep intact, when that court has the power to nullify any law it sees fit to nullify? When that court can actually (in effect) rule to nullify parts of the US Constitution itself?

This is just the latest in a long-running series of constitutional crises being manufactured by those dark and mysterious entities known collectively as "they".

Hey - I may be paranoid, but that don't mean nobody's out to get me.

Anyway, taking a look at a few wrinkles in this big fuckin' mess we're up to our eyeballs in:

WaPo: (pay wall)

Opinion: Louisiana reveals the war on rights that is coming if Roe is overturned

With the Supreme Court considering whether to overturn Roe v. Wade, Louisiana House Republicans advanced this past week an antiabortion bill of astonishing sweep. The proposal would rewrite the state’s homicide statute to “ensure the right to life and equal protection of the laws to all unborn children from the moment of fertilization by protecting them by the same laws protecting other human beings.” In other words, not only would the bill empower Louisiana prosecutors to charge women who get abortions with murder, it appears to declare the use of in-vitro fertilization, intrauterine devices and emergency contraception to be homicide, too.

For half a century, Americans could more or less take for granted their right to terminate their pregnancies, seek help starting families or get IUDs. Many might not realize how dramatically overturning Roe would reshape American life. Some deny this reality, arguing that, should the Supreme Court repudiate Roe, as a draft majority opinion that leaked earlier this month suggests it might, the United States would resemble Europe, where first-trimester abortion is legal nearly everywhere. In fact, overturning Roe would result in the immediate banning of abortion in the 13 states that have antiabortion laws designed to kick in as soon as Roe is gone. Republican leaders in Nebraska, South Dakota and Indiana are calling for legislative special sessions to pass sweeping new abortion restrictions.

And Louisiana shows that, given the option, right-wing lawmakers are poised to wage a broad war against reproductive rights that would horrify most Americans. It might be that wealthy people in states run by anti-abortion zealots would be able to cross state lines to terminate their pregnancies or to seek other family planning options. (Though some Republicans want to try to ban that, too.) But poor people would be unable to get safe, legal abortions. On top of the health risks they would face seeking illicit abortions, in Louisiana these individuals might also risk being prosecuted for murder. Given that many women seek abortions because they would struggle to carry their pregnancies to term while caring for the families they already have, the bill would be a particularly cruel twist that would threaten the families who are least capable of facing such hardship.

If Roe were egregiously wrong, as Justice Samuel A. Alito Jr. claims in the leaked draft opinion, the justices would have to weigh whether enabling such drastic and immediate consequences would be good for the orderly application of the law. But the court need not make that tough call, because Roe was a reasonable ruling to which seven justices signed their names, and which the court upheld in 1992’s Planned Parenthood v. Casey. Other than the makeup of the court, the only thing that has changed in the past half-century is that Roe has become a keystone decision for Americans’ personal rights. Overturning it now would wound the nation, worsen the country’s politics and make some of the most vulnerable Americans more so. It would be the height of gratuitous judicial activism.

Glenn Kirschner - There ought to be public hearings and an impeachment inquiry. 

Lawrence O'Donnell, with former USAG Eric Holder:

That Thing About Rights

IMHO, an awful lot of the shitty things happening around the world can be laid at the feet of anyone who's bought in to the bullshit notion that "government should work like a business."

Companies are dictatorships, and too many of the bean counters in charge of those companies care about little more than the monthly numbers and what color ink they see on a 12 column ledger.

WaPo: (pay wall)

Human rights and democracy eroding worldwide, U.S. finds

Respect for human rights and democratic norms eroded around the world in 2021, as repressive states increasingly detained opponents and struck out beyond their borders at those seen posing a threat, the Biden administration said on Tuesday.

Secretary of State Antony Blinken described what he called a continued “recession” in basic rights and the rule of law over the past year as he unveiled the U.S. government’s annual assessment of the global human rights situation.

“Governments are growing more brazen, reaching across borders to threaten and attack critics,” Blinken said, citing an alleged effort by Iran’s government to abduct an Iranian American journalist from New York; efforts by the Assad regime to threaten Syrians cooperating with German steps to try former regime officials; and Belarus’s diversion of a commercial flight to seize a journalist.

Blinken said the jailing of political opponents had become more common in 2021, with more than a million political prisoners detained in more than 65 countries. He singled out the imprisonment of peaceful protesters in Cuba; activists and advocates in Russia and Egypt, including Russian opposition leader Alexei Navalny and Egyptian human rights lawyer Mohammed al-Baqr; and opposition presidential candidates in Benin.

Hubris and isolation led Vladimir Putin to misjudge Ukraine

The Biden administration has already said it believes Russian forces are committing war crimes in Ukraine. Last week, U.S. officials helped orchestrate an effort to suspend Russia from the United Nations’ Human Rights Council.“In few places have the human consequences of this decline been as stark as they are in the Russian government’s brutal war on Ukraine,” he said, pointing to apparent atrocities revealed by the recent withdrawal of Russian forces from some parts of the country. “We see what this receding tide is leaving in its wake — the bodies, hands bound, left on streets; the theaters, train stations, apartment buildings reduced to rubble with civilians inside.”

The report laid out a litany of alleged abuses by both allies and rivals, including forced disappearances in Saudi Arabia and what it characterized as ongoing acts of genocide and crimes against humanity against Uyghur Muslims in China. It also cited reprisals by Taliban authorities in Afghanistan against members of the former government and steps to limit freedoms of women and girls, as well as alleged abuses by all parties in the conflict in Ethiopia, including government troops from Eritrea.

Because the report is focused on trends in 2021, it did not explicitly address Russia’s ongoing invasion of Ukraine. But Blinken, in remarks to reporters, said that Russian forces’ abuses had been numerous since its offensive began on Feb. 24, including alleged executions, rape and the deprivation of civilians’ access to food, water and medicine.

Here in USAmerica, we've had our fingers in some really bad shit over the years. We can't keep ducking the consequences of our own shitty behavior while expecting everybody else to be held to account.

So this next bit is kind of a big deal - and we'll see how long before the Republicans latch onto it and start screaming about how Biden hates America.

Blinken said the United States would not be spared scrutiny over its own human rights violations. Since taking office, administration officials have said they would openly acknowledge chronic problems at home, including police violence against Black Americans.

“We take seriously our responsibility to address these shortcomings, and we know that the way we do it matters,” he said.

Sarah Yager, Washington director at Human Rights Watch, welcomed the report but said it failed to highlight the U.S. role in overseas conflicts where civilians have suffered widespread harm, including in Afghanistan and Yemen. The United States continues to provide arms and aircraft maintenance support to Saudi Arabia, which leads a coalition battling Houthi rebels in Yemen.

“Always a little odd to read about other’s human rights abuses as if US had nothing to do with them. e.g. no mention of US support to Saudi [Arabia] in Yemen but the #HumanRightsReport discusses Iran support to Houthis,” she said on Twitter. “No mention of US in Afghanistan or civilian harm caused in Kabul.”

Asked about how the Biden administration would balance human rights against other American interests, and how such acts would affect American partnerships with countries with poor human rights records, Blinken said that officials sometimes chose to press foreign governments in private, and sometimes in public, including in the annual rights report.

“It doesn’t distinguish between friend and foe. We apply the same standard everywhere,” he said.

Such strains have been particularly visible in recent months between the Biden administration and key Gulf allies like Saudi Arabia as U.S. officials seek to secure increased energy output amid the war in Ukraine and Gulf officials bristle at a host of issues, including what they see as overstated criticism on human rights.

What Has To Happen?

Do I really have to say it?

If these truckers were a buncha black folks - or indigenous First Nations people - Ottawa would not be sitting and fretting, and the "conservatives" would not be kickin' back, enjoying Mr Trudeau's discomfort - they'd be screaming for blood.

"...could be arrested..."?

The minute you hear anything tagged "Freedom" this or "Freedom" that, you know it's ridiculously unlikely to be anything legit - that there's a very high probability for it to be nothing more than an Astro-Turfed play for shock value, or intimidation, or some other Daddy State bullshit aimed at bullying people into giving up on the rule of law.

I can all but guarantee there's an ulterior motive at work.

This is not legitimate civil disobedience. This is a mob of Bannon's Blackshirts showing the world their intention to do whatever they want with total impunity.

Blackshirts

WaPo: (paywall)

‘Freedom Convoy’ protesters who block streets could be ‘arrested without a warrant,’ Ottawa police warn

Police in Ottawa are warning that any protesters blocking streets for the self-described “Freedom Convoy” may be “arrested without a warrant,” as raucous protests against vaccine mandates and coronavirus restrictions continue with no end in sight.

The protests, which have led to at least 23 arrests and 80 criminal investigations in the capital, are now sparking vigorous debate among officials over how best to de-escalate the situation there and at U.S.-Canada border crossings, where blockades have disrupted the flow of goods and people. Some are warning that mass arrests could prove counterproductive or even lead to violence.

Early Thursday, a convoy of trucks with passengers shouting “Freedom!” and “Fake news!” descended on Ottawa International Airport, causing traffic disruptions and delays.

“It is a criminal offence to obstruct, interrupt or interfere with the lawful use, enjoyment, or operation of property,” Ottawa police said in a news release issued Wednesday, telling protesters: “You must immediately cease further unlawful activity or you may face charges.”

‘Freedom Convoy’ in Canada inspires vaccine-mandate protests from New York to New Zealand

Police said those found to be taking part in criminal activity — which could include blocking streets or “assisting others in the blocking of streets” — could be arrested. Police are also giving notice that vehicles could be seized and possibly forfeited if people are convicted.

Law enforcement officials are under pressure to use tougher measures to disperse demonstrations, including those that continue to clog traffic arteries between the United States and Canada. So far, two major ports of entry — the Ambassador Bridge connecting Detroit to Windsor, Ontario, and the Coutts crossing linking Montana to Alberta — have been closed or partially blocked.

Canadian Prime Minister Justin Trudeau, who has been widely targeted by protesters denouncing his response to the pandemic, called the obstruction of border crossings an economic crisis. He tweeted that the blockades in Windsor and the capital, Ottawa, where a state of emergency was declared over the weekend, “must stop” — but he didn’t elaborate on how this could be achieved.

The blockades, he said, “are endangering jobs, impeding trade, threatening the economy, and obstructing our communities.” Business groups and experts reported that the bridge blockades were hurting supply chains. Goods worth approximately $300 million cross the Ambassador Bridge every day.

Despite the warning from Ottawa police, some local law enforcement officers seemed to acknowledge the fraught implications of mass arrests.

“You can’t arrest your way out of the choices that people are making. … The best thing is for them to make the decision to leave,” a Royal Canadian Mounted Police superintendent in Alberta, Roberta McKale, told reporters Wednesday at one of the protest sites near Coutts. “And they’ve got to go.”

Still, McKale said, asking the protesters to leave has so far not worked: “We’re going to have to use our enforcement options in order to have that happen.”

And Windsor’s mayor, Drew Dilkens, warned that arresting people could lead to violence, telling local outlets that Windsor police must be “calculated and appropriately balanced” in how they handle protesters. “At this time, our focus is on maintaining security and de-escalating the situation as much as possible,” he said during a news briefing.

Some protesters believe “they are fighting for a cause that is worth dying for,” Dilkens said. “That type of sentiment translates into different behaviors than any normal protests.”

In Ottawa, where more than 1,000 tickets for offenses including excessive noise and red-light violations have been issued, municipal authorities are stepping up enforcement. They can now issue fines up to nearly $800 for setting fires or creating noise, a steep increase for those types of offenses, the Canadian Broadcasting Corp. reported.

Here’s what you need to know about the ‘Freedom Convoy’ in Canada

The Ambassador Bridge is temporarily closed, while the delay at the Coutts land crossing is estimated at seven hours, according to Canada’s border service agency. Dilkens said in an interview Wednesday that local police have tried to keep at least one lane open in each direction on the Ambassador Bridge so that goods could be transported across the border while respecting people’s right to protest.

The U.S. Department of Homeland Security is also monitoring a campaign in which truckers in the United States are potentially planning to block roads in major metropolitan areas in protest of vaccine mandates. The Super Bowl in Los Angeles on Sunday and President Biden’s State of the Union address March 1 could be affected.

In New Zealand, an anti-vaccine rally outside Parliament in Wellington led to mass arrests, after crowds gathered to protest myriad reasons, including lockdown restrictions and alleged media corruption.

“We stand with Ottawa,” read the message on the side of one truck at the scene, while others held signs attacking the media and calling the global health crisis “a plandemic.”

The Wellington district commander, Superintendent Corrie Parnell, told reporters that 120 people were arrested Thursday as the protest there went into its third day.

Similar demonstrations — seemingly energized by Canada’s convoy — have also been held in Australia, France, Alaska and across Europe in recent days.

As the protests drag on, concerns are growing for the number of children who have been present.

About 25 percent of attendees inside some 400 trucks stationed at the scene are believed to be children, police say, which could complicate the ways in which officers respond to those protesting. Ottawa Police Deputy Steve Bell cited sanitation, noise levels and carbon monoxide fumes as some of the risks that children who are spending so much time inside the trucks could face.

“It’s something that greatly concerns us." Bell told reporters Tuesday, adding that the children could be “at risk during a police operation.”

The Ottawa Police Service said Wednesday that it was aware of the welfare concerns and working with the Children’s Aid Society of Ottawa to “ensure the safety” of the children present. The force said it would be sharing information with the CASO and that the organization “has a duty to investigate whenever there are allegations of abuse or neglect that suggest a child or youth may be in need of protection.”