QOTD: Reform The Supreme Court

 

In an editorial opinion this morning in the Washington Post, President Biden laid out his proposal to reform the Supreme Court after a series of extreme opinions signaled the need for change. The opening paragraphs

"This nation was founded on a simple yet profound principle: No one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States. No one.

But the Supreme Court’s 6-3 decision on July 1 to grant presidents broad immunity from prosecution for crimes they commit in office means there are virtually no limits on what a president can do. The only limits will be those that are self-imposed by the person occupying the Oval Office.

If a future president incites a violent mob to storm the Capitol and stop the peaceful transfer of power — like we saw on Jan. 6, 2021 — there may be no legal consequences.

And that’s only the beginning."

The President goes on to list three reforms: a Constitutional amendment to prevent Presidents from claiming criminal immunity for official acts, 18-year term limits on Supreme Court justices, and a binding code of conduct (ed.- let's call it the Clarence Thomas Code) to help eliminate financial or other conflicts of interest. Reforms like these require a public movement of support, and elected officials who will act on the reforms. A President Kamala Harris and a Dem Senate and House will help push them through, a MAGA one will not. That's something else on the ballot in November.

 

Rebalancing The Smug, Immodest, Corrupt Supreme Court

 

We have two worthwhile reads on the illegitimate Republican Supreme Court this morning. We're only posting brief extracts, so please go to the links for the full reads.

First, conservative Jill Lawrence's views on the Court have been evolving:

... Until recently I was skeptical about both term limits and Court expansion. I didn’t sense the political will for either one, and I wasn’t sure either was warranted. But since the immunity hearing, and after many rulings detached from precedent, practicality, or public opinion, I’ve had zero doubt about the need for term limits and I’m even warming up to the prospect of a thirteen-justice Court.

The point of all of this is not to pack the Court and send it screeching left, but to rebalance and stabilize an institution that has grown smug, immodest, inured to ethics abuses, and cavalier to constitutional and national concerns and freedoms—starting with whether a president who tried to stay in power despite losing an election should be tried for that before voters pass judgment on his third presidential campaign.

Meanwhile, Dan Pfeiffer writes about why the Court can be a big election issue for Democrats:

...This is the court that overturned Roe v. Wade and is helping ensure Trump avoids accountability for his crimes. They are corrupt and out of touch with mainstream American values.  [snip]

Running against a corrupt court is pushing on an open door. American faith in the Supreme Court is at an all-time low.  

 

[snip]

Making voters — especially the less politically engaged — care about the Supreme Court is difficult. To succeed, we have to explain why it matters to their lives; how the rulings of a MAGA court will restrict their freedoms and be a boon to powerful interests. The fundamental question of this election is whether Democrats can hold together the anti-MAGA majority that won elections in 2017, 2018, 2019, 2020, 2022, and 2023. The best way to do that is to make this election about something bigger than a contest between two men. The Supreme Court is a perfect issue to go big.

Both Lawrence and Pfeiffer are coming at the problem from somewhat opposite ends of the political spectrum, but both agree something fairly drastic needs to be done to undo the damage wrought by packing the Court with Republican/ Federalist Society extremists, starting with the modest step of establishing ethics rules.  

Expanding the Court or establishing term limits may be aspirational to the point of fantasy, at least during this era of extremist right- wing revanchism. But, in 2024, campaigning on the real world consequences of an out- of- touch extremist Court in the lives of the average American -- e.g., losing reproductive freedom, caving to special interests like the gun lobby and industrial polluters -- can be the first step toward building a coalition for change and reform.  The lesson to be learned from the right's decades- long project to reshape the Court is that this process is a marathon, not a sprint.

(Cartoon:  Joe Heller, hellertoon.com)

Republican Supreme Court Hears Arguments Today Over Mifepristone Access

 

As we noted yesterday, fallout from the Republican Supreme Court's Dobbs decision overturning Roe v. Wade and 50 years of precedent rolls on with arguments today over access to the abortion drug mifepristone:

The Supreme Court is hearing arguments Tuesday in its first abortion case since conservative justices overturned the constitutional right to an abortion two years ago. At stake is the ease of access to a medication that was used in nearly two-thirds of all abortions in the U.S. last year.

Abortion opponents are asking the justices to ratify a ruling from a conservative federal appeals court that would limit access to mifepristone, one of two drugs used in medication abortions.

The high court’s return to the abortion thicket is taking place in a political and regulatory landscape that was reshaped by the abortion decision in 2022 that led many Republican-led states to ban or severely restrict abortion.

That ruling had immediate political consequences and the outcome in the new case, expected by early summer, could affect races for Congress and the White House.

The practical consequences of a ruling for abortion opponents would be dramatic, possibly halting the delivery of mifepristone through the mail and at large pharmacy chains, reducing the period in pregnancy when it can be used from 10 to seven weeks and ending increasingly popular telehealth visits at which the drug can be prescribed.

President Joe Biden’s administration and drug manufacturers warn that such an outcome also could undermine the FDA’s drug approval process more widely by inviting judges to second-guess the agency’s scientific judgments...

Based on the questioning, we should get a sense of where the six trad Catholic Republicans- in- robes may come down on restricting access to mifespristone, but (spoiler alert) we would expect they will go along with the forum- shopped lower court ruling (we'd love to be wrong):

The mifepristone case began five months after the Supreme Court overturned Roe v. Wade. Abortion opponents initially won a sweeping ruling nearly a year ago from U.S. District Judge Matthew Kacsmaryk, a Trump nominee in Texas, which would have revoked the drug’s approval entirely. The 5th U.S. Circuit Court of Appeals left intact the FDA’s initial approval of mifepristone. But it would reverse changes regulators made in 2016 and 2021 that eased some conditions for administering the drug.

The Supreme Court put the appeals court’s modified ruling on hold, then agreed to hear the case, though Justices Samuel Alito, the author of the decision overturning Roe, and Clarence Thomas would have allowed some restrictions to take effect while the case proceeded.

The extremist forced- birthers holding sway over the Republican/ MAGAt cult and its lifetime- appointment judges around the country aren't stopping here.  They'll keep gnawing away at women's reproductive freedoms -- including contraception! -- unless and until the Republican Supreme Court is unpacked and the rights and freedoms that are being taken away by these goons are restored.  For that to happen, we need to have a Democrat in the White House and a Democratic- majority Senate.  For however long it takes, we need to be as resolute and strategic as the forced- birthers have been for the last half century.

(Image: Anna Moneymaker / Getty Images)

Republican Supreme Court Undercuts Voting Rights, Again

Once again, the Republican Supreme Court has weighed in via its "shadow docket" (as it has on several other occasions) to roll back precedent and democracy:

The U.S. Supreme Court further undercut the Voting Rights Act on Monday, blocking for now the creation of a second majority-Black congressional district in Alabama for the 2022 election.

The court's action came on an emergency appeal from Alabama, which challenged a decision by a three-judge federal court panel that included two Trump appointees. The lower court concluded that under the Voting Rights Act, Alabama, a state with a population that is more than one-quarter Black, could reasonably, and therefore must, create two majority-Black districts out of seven congressional districts.

The Supreme Court vote was 5-4, with Chief Justice John Roberts joining the court's three liberals in dissent. All four would have refused to intervene now, thus allowing the 2022 election to go forward with a map calling for two majority-Black districts. In contrast, the five-justice majority decision means that for at least another election cycle, Alabama will have just a single majority-Black congressional district, because the primaries are set to take place in May.  [snip]

Once again, the court's action came in an unsigned order, without full briefing or argument, though the court will eventually hear arguments in the case, either later this term or, more likely, next fall.

"Accepting Alabama's contentions would rewrite decades of this Court's precedent" about the Voting Rights Act, wrote Justice Elena Kagan in a dissent joined by Justices Stephen Breyer and Sonia Sotomayor. "Here the district court applied established legal principles to an extensive evidentiary record. It's reasoning was careful — indeed exhaustive — and justified in every respect," and to do this on the court's "shadow docket" without full briefing and argument first "does a disservice to Black Alabamians who ... have had their electoral power diminished — in violation of a law this Court once knew to buttress all of American democracy."

This lawless gaggle of Republican extremists, three of which are on the Court thanks to the lawless Malignant Loser and his "Old Crow" partner Moscow Mitch McConnell, has already shown itself eager to block challenges to partisan gerrymandering,  roll back and neuter a woman's right to a legal and safe abortion, sabotage a state's ability to impose COVID  vaccine requirements in state hospitals during a pandemic that's killed 900,000 Americans, and refuse to give the Biden Administration the same deference it gave the neo- fascist Malignant Loser.  With this action, there should be no doubt that this ultra- reactionary Court is in the business of culture and political warfare, not legal adjudication based on precedent.

If there has been any doubt so far, there can be none now:  this is an simply operational arm of the Christofascist, white nationalist, reactionary Republican Party.  It's not a legitimate institution of government.

BONUS:

the supreme court steadily dismantling the voting rights act is very much in keeping with its historic role as the institution more likely to *undo* congress’ work defending the civil and voting rights of all americans than it is to protect it

— b-boy bouiebaisse (@jbouie) February 8, 2022

 

 

Did Radical Republican Dogs Finally Catch The Car?

 

Here's a sampling of opinion this morning on the Texas law effectively ending abortion rights in that state:

 

"The court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.

"Last night, the court silently acquiesced in a state’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the court belatedly explains that it declined to grant relief because of procedural complexities of the state’s own invention. Because the court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent." -- Justice Sonia Sotomayor, in her dissent to the SCOTUS acquiescence in letting the Texas law stand.

 __________

"...It’s not just that the majority of the Supreme Court functionally ended abortion rights for most women in Texas last night merely because they could. And it’s not just that they did so because—as is so often the case with impressionistic, frayed shadow docket reasoning—their personal feelings about the constitutional right to abortion are quite robust. It’s almost impossible to not go one further and declare that the court opted to end virtually all abortion rights in Texas, in the full knowledge that they were blessing an unconstitutional and brutal piece of lawless vigilantism, because it’s only about women." -- Dahlia Lithwick, Slate.

__________

"Today, accountability has suddenly arrived. Texas Republicans have just elevated abortion rights to perhaps the state’s supreme ballot issue in 2022. Perhaps they have calculated correctly. Perhaps a Texas voting majority really wants to see the reproductive lives of Texas women restrained by random passersby. If that’s the case, that’s an important political fact, and one that will reshape the politics of the country in 2024.

"But it’s also possible that Texas Republicans have miscalculated. Instead of narrowly failing again and again, feeding the rage of their supporters against shadowy and far-away cultural enemies, abortion restricters have finally, actually, and radically got their way. They have all but outlawed abortion in the nation’s second-largest state, and voted to subject women to an intrusive and intimate regime of supervision and control not imposed on men. At last, a Republican legislative majority has enacted its declared beliefs in almost their fullest form—and won permission from the courts to impose its will on the women of its state." -- conservative David Frum, The Atlantic.

__________

"Joshua Wilson, a political science professor at the University of Denver, said Republicans have had a “safe space” for years, because their vow to outlaw abortion was seen as an empty promise by both the left and the right as a result of the support for legal abortion during the previous Supreme Court regime.

"Now, that safe space is gone.

“'Under Trump, the Supreme Court context changed dramatically. So suddenly you’re in this context where the court might roll back abortion rights,'” Wilson said. “'That makes the politics more dangerous for Republicans.'” -- Alex Seitz-Wald and Sahil Kapur, NBC News.

__________

"This is not the end of the legal road, even in the federal courts. The underlying legal dispute can proceed through the lower courts and back up to the justices. There is litigation in state courts in Texas as well, state courts that are also bound to respect the Constitution.

"In the interim, though, the impact is clear. In Texas, women’s constitutional rights are being violated every day — as those sworn to uphold and enforce the Constitution stand by, approving." -- Ruth Marcus, Washington Post.

__________

Can't shake the sense that the GOP is about to become the dog that caught the car.

— Josh Chafetz (@joshchafetz) September 2, 2021

 

Let's all make sure that this war on women, which will now be waged in every Republican- controlled state in the Union, will end in the annihilation of Trumpist, Christo-fascist Republicanism.  Rise up and stay risen!

The "Broad Assault Against Voting Rights"

Here's some reading regarding yesterday's Republican Supreme Court's decision in the Brnovich v. Democratic National Committee voting rights case.

President Biden's statement:

I am deeply disappointed in today’s decision by the United States Supreme Court that undercuts the Voting Rights Act, and upholds what Justice Kagan called “a significant race-based disparity in voting opportunities.”

In a span of just eight years, the Court has now done severe damage to two of the most important provisions of the Voting Rights Act of 1965 – a law that took years of struggle and strife to secure. 

After all we have been through to deliver the promise of this Nation to all Americans, we should be fully enforcing voting rights laws, not weakening them. Yet this decision comes just over a week after Senate Republicans blocked even a debate – even consideration – of the For the People Act that would have protected the right to vote from action by Republican legislators in states across the country. 

While this broad assault against voting rights is sadly not unprecedented, it is taking on new forms. It is no longer just about a fight over who gets to vote and making it easier for eligible voters to vote. It is about who gets to count the vote and whether your vote counts at all.

Our democracy depends on an election system built on integrity and independence. The attack we are seeing today makes clearer than ever that additional laws are needed to safeguard that beating heart of our democracy. We must also shore up our election security to address the threats of election subversion from abroad and at home.

Today’s decision also makes it all the more imperative to continue the fight for the For the People Act and the John Lewis Voting Rights Advancement Act to restore and expand voting protections. The Court’s decision, harmful as it is, does not limit Congress’ ability to repair the damage done today: it puts the burden back on Congress to restore the Voting Rights Act to its intended strength.

That means forging a coalition of Americans of every background and political party – from advocates, activists, and business executives – to raise the urgency of the moment and demand that our democracy truly reflects the will of the people and that it delivers for the Nation.

That is what Vice President Harris and I will continue to do. 

This is our life’s work and the work of all of us.

Democracy is on the line.

We can do this together.

The Washington Post editorial board:

At times, Chief Justice John G. Roberts Jr. has labored to maintain the Supreme Court’s legitimacy against the gale-force pressures of partisan acrimony and social division. When it comes to voting rights, he has pushed in the opposite direction, presiding over the court’s systematic dismantling of the Voting Rights Act, overriding Congress’s clear intentions and gravely injuring U.S. democracy.

The first major blow came in 2013, when the court eviscerated the act’s Section 5, which required states with a history of racial discrimination to preclear changes to voting rules with the Justice Department. The decision left in place a backstop, Section 2, which allows legal challenges to discriminatory election rules after they have been enacted. On Thursday, the Roberts court sharply limited that provision as well.

The court also encouraged states to argue that worries about fraud and voting integrity justify new burdens on the right to vote — though there is little or no evidence that the fraud state leaders claim they are fighting actually occurs. From the nation’s Jim Crow past to its voter-suppression present, states have claimed that they merely want to ensure ballot integrity as they impose voting restrictions that disproportionately burden minority voters. The Supreme Court lent legitimacy to their search for pretext.

E.J. Dionne, Jr., writes on the Brnovich decision, as well as yesterday's awful decision on a dark money case (Americans for Prosperity Foundation v. Bonta), calling it "Oligarchy Day" at the Republican Supreme Court:

From the GOP blockade against President Barack Obama’s appointment of Merrick Garland to the 2020 confirmation of Amy Coney Barrett a little more than a week before Election Day, Republicans have been ruthless in using raw power to tilt court outcomes. Two votes on the court could (and likely would) have shifted the outcomes of Thursday’s decisions the other way.

Conservative justices may not vote as a bloc on every issue, but they have held together firmly when it comes to issues affecting democracy itself. Court enlargement must now be on the agenda of anyone who cares about protecting voting rights and our increasingly fragile system of self-rule.

Also, please take a look at "Don't Be Fooled: This Is Not A Moderate Supreme Court," by Leah Litman and Melissa Murray, who review the latest term of this radical Court.

There is no more important fight than the fight for democracy in the United States.  We have no option but to win it, and to be more ruthless in that pursuit than the Right.