From Roger Fitch and our friends down under at Justinian

 

Courtroom capers 

ROGER FITCH ESQ • WEDNESDAY, MARCH 27, 2024

Trump ... Looking for the cash bond ... Lenders likely to be stiffed ... Supreme Court bends over for Trump ... Novel arguments for immunity ... Idiocy has its appeal ... From Washington, Roger Fitch reports 

"I often say Al Capone, he was one of the greatest of all time, if you like criminals" - Donald Trump 

"Trump represents the culmination of gangster Gemeinschaft" - John Ganz

The first criminal prosecution of a former US president is about to begin, briefly delayed by the late production of federal court documents that Trump subpoenaed in January.

The defendant has a sordid history, and the NY trial concerns hush-money paid to a prostitute before the 2016 election; Trump's co-conspirator, Michael Cohen, has already been convicted and served time.

Trump's trial will be about election influence, an attempt to corrupt a presidential election.

Clearly, Judge Juan Merchan has Trump's measure: one pre-trial order requires jury anonymity, in light of the "likelihood of bribery, jury tampering, or of physical injury or harassment of juror(s)".

Another is a comprehensive gag order against Trump's endless insults and harassment of court witnesses, prosecutors and jurors.

NY federal judge Lewis Kaplan also ordered anonymous juries and a gag rule, in the writer Jean Carroll's successful civil cases against Trump. After the second Carroll verdict, Kaplan thanked the jurors for their service, and recommended they never tell anyone they had been jurors, for the rest of their lives.

This is New York. They know Donald Trump. 

Moreover, the Times added, with MAGA threats:

"The intimidation is systemic and ubiquitous, an acknowledged tactic in the playbook of the Trump right that flows all the way down from the violent fantasies of Donald Trump himself. It is rare to encounter a public-facing Trump critic who hasn't faced threats and intimidation." 

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Stormy: hush

By co-incidence, there were two Trump court appearances on March 25. A date was set for the hush-money case (April 15), and March 25 was the deadline for Trump to post an appeal bond in the NY business fraud case in which Judge Arthur Engeron imposed a $356 million fine (with interest, $454+ million).

That amount, set for bond, was under appeal, and the Court of Appeals had not ruled. 

Getting a bond that big was never going to be easy for the cash-strapped defendant, who, with his deadbeat reputation, barely managed to post a $91 million Carroll defamation appeal bond. The Times warned: 

"If he reclaims the White House, it could be difficult for the bonding company to collect from a sitting president, particularly one who has stiffed lenders and lawyers in the past." 

Over 30 companies rebuffed Trump's efforts to secure the second bond, but the resourceful defendant had a back-up scheme: he arranged for a "special-purpose acquisition" shelf company, stuffed with cash from his followers, to merge with his nearly-broke "Truth Social" media company, with shares to be listed on the NYSE (symbol DJT). 

The plan: get the enterprise going in time for the new company's cash to be converted by Trump, the principal shareholder in time for March 25.

March 25 arrived, Trump had no bond, and DJT hadn't launched; would the defendant be found "swimming naked"? The classy ex-president was already so desperate, he was hawking $400 Trump shoes and $60 Trump-endorsed bibles. 

Then, as the disgraced ex-president shuttled between New York courtrooms, a third event occurred: the long-awaited ruling in the pending appeal of the bond amount was announced, and it contained a $300 million reduction from the bond set by Judge Engeron. 

Trump was given ten days to post a $175 million cash bond, and the ten days could make a difference: "DJT" finally went public, on March 26. It's share value doubled to $6 billion. 

Meanwhile, Trump's newly-installed Republican National Committee chair, daughter-in-law Lara Trump, promises the RNC will give Trump's legal costs ($50 million so far) priority when disbursing party funds. 

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Thomas and Alito (centre): expected to endorse Trump's view of election and document thefts

In Trump v Anderson, the Colorado case disqualifying Trump from office for insurrection, under Article 3 of the 14th amendment, the supreme court gave Donald Trump what he wanted: a bail-out and delay.

Professor Michael Dorf's legal analysis of the feckless court's dogs-dinner decision is probably the best on a judicial failure that has rekindled January 6 and could cause chaos. Moreover, Trump and 1,200 others charged in the January 6 riot can apparently run unimpeded for federal offices. 

The New Republic, Lawfare, NYRB and Slate have more. 

The court's ruling solved Trump's Article 3 problems. Was it part of a grand bargain of the justices in which Trump's farcical claim of absolute criminal immunity (still pending) will be disposed of in the government's favour?

Thus far, the supreme court has given Trump everything he wants. As the Times noted, the court is going out of its way to help him. The hearing in the total immunity case - so absurd it should never have been granted certiorari - is now set for the very last day of arguments in the 2023 term. What more could Trump's lawyers have hoped for? It's a bad sign. 

There shouldn't have even been the four justices required to grant certiorari to Trump's nonsensical, counter-intuitive claims, e.g, that elections are an official concern of presidents and meddling in one may be an immune presidential act.

Trump's lawyers are also arguing that purloining and hoarding classified, government-owned documents is also an immune official act.

As in the immunity case, Clarence Thomas may participate, as he did in delivering a fifth vote for the majority opinion in Trump v Anderson, yet it's hard to imagine any justices besides Thomas and Sam Alito endorsing Trump's view of elections and document theft.

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It's wrong that a trial can't proceed during an election season: it's filing charges during that period that's disfavoured. Beginning a federal criminal trial before the election is essential, especially as the authoritarian Trump, if elected, would dismiss the charges, including the Espionage Act violations.

Nevertheless, Special Counsel Jack Smith is having difficulty making classified document charges against Donald Trump clear enough for Aileen Cannon, a clearly-unqualified and patently-prejudiced judge.

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Fox News viewers

Aside from political appointees like Aileen Cannon, why would anyone prefer the chaotic Donald Trump over the accomplished Joe Biden? 

Is it collective amnesia? shared psychosis? cognitive dissonance? Are these voters mesmerised by extrinsic values?

With Trump it could be the "low information trap": voters don't "get it" because they don't know about it, or are unable to engage in critical thinking, both consequences of Murdoch media.  

A Salon writer thinks:

"It's not just that Trump's own intellectual baseline is so low. It's that Republican voters have lost the ability to notice when someone isn't making sense, having fried their minds on right-wing propaganda."  

Maybe, as Salon theorises, "Trump's idiocy is part of his appeal. For every mediocre white guy who wants to coast on his privilege, Trump is an aspirational figure".

Or perhaps, as Trump has implied, his supporters just "like criminals". 

The man himself certainly does.

From Roger Fitch and our friends down under- at Justinian

 

Danger ahead - falling rocks

ROGER FITCH ESQ • WEDNESDAY, FEBRUARY 28, 2024

Voting in America ... Gerrymanders and voter suppression give Republicans a whopping advantage ... The 14th amendment and its possibilities ... The post-Civil War reconstruction amendments ... Trump and the suspension of the Constitution ... Roger Fitch explains 

If more Americans had been able to vote in 2016, Donald Trump would have lost. 

However, thanks to the supreme court's decision in Shelby County v Holder (2013), the 2016 presidential election was the first in 50 years without the essential protections of the 1965 Voting Rights Act, resulting in massive vote suppression.

After the court inexplicably struck down the recent, near-unanimous, re-enactment of the Act's provisions requiring federal pre-clearance of voting measures, a toxic torrent of voting restrictions poured forth from conservative (and racist) states.

Private enforcement actions remained, but in November 2023, a 2-1 panel of the 8th circuit issued a clearly-wrong decision that such actions are not allowed, though they've been used for 40 years during which time private litigants brought 182 successful lawsuits and the DoJ alone only 15. 

Worse, four Republican states are cynically pursuing a two-pronged attack on the remnants of the VRA.

A third of eligible voters in America fail to vote. Why? It's the difficulty of doing so under Republican Party governance. Voting is voluntary, and it's actively discouraged through onerous registrations and voting, pointlessly-purged voter rolls, inconvenient polling sites, Tuesday elections, deliberately-burdensome ID requirements, restricted voting hours, and even punishments for poll assistance.

If one succeeds in voting, gerrymanders can give Republicans an advantage of 7% or more; in Wisconsin 47.5% of the vote gives Republicans a two-thirds super-majority in the legislature, enough to override executive actions of the progressive Democrat governor.

Enforcement of an overlooked provision of the 14th amendment might address these problems.

Americans are constantly reminded of the holy writ enshrined in the Constitution (1789) and Bill of Rights (Amendments 1-10, adopted 1791), but people know little about the Reconstruction Amendments hammered out by Congress after the Civil War, in debates rivalling those of the Philadelphia Constitutional Convention eighty years earlier. 

Reconstruction Amendments - deliberations

Following the Civil War, the 13^th, 14^th and 15th amendments were adopted to recast the Constitution and Bill of Rights, and vindicate the supremacy of the federal over state governments, not least in matters of citizenship, voting, and (gender aside) freedom from discrimination. 

Most people have heard of the 13th Amendment, abolishing slavery, and perhaps the 15th, but it's the 14th that is most well-known, the amendment that turbo-charged the Bill of Rights. Properly interpreted, the 14th would be Donald Trump's kryptonite, as its Section 3 prohibits certain insurgents holding office. 

The supreme court, however, seems sure to allow Trump on the ballot, simply deferring a constitutional crisis. Why? Perhaps because Section 3 doesn't mention the (Australian) ballot. 

Other sections of the 14th are more consequential: Section 1 adds birthright citizenship, equal protection and privileges or immunities to the due process provided in the Bill of Rights, making these federal protections also those of state citizens. Then there is Section 2: 

"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State ... when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." (emphases added)

It was Section 2 that introduced a gender distinction for the first time through its "male" references: no mention of sex appears in the Constitution or Bill of Rights.

In Section 1, women were included in the same birthright citizenship, "privileges or immunities", due process, and equal protection as men. Yet during the compromises in drafting section 2, recognition of women was dropped: it was thought its inclusion would make ratification too difficult.

The campaign for women's suffrage had begun before the War, in the 1848 Seneca Falls Convention, and there were precedents for women voting, e.g, single women and widows voted in New Jersey from 1776 to 1807, when the all-male legislature put a stop to it. 

Hence one purpose of Section 2 - in referring to male inhabitants and male citizens - was deterring states from increasing their representation in congress by enfranchising women, as soon occurred in Wyoming Territory (1869) and elsewhere in the West. The "male" distinction became redundant after the adoption of the 19th Amendment (1920).

The 15th Amendment also refers to "males", as it only sought to deal with racial, not sex, discrimination. What is striking is that the amendment does not contain a right to vote, something the US, alone among advanced democracies, lacks. 

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Barry Blitt's "Exposed"Donald Trump's absurd and intensely-contested claim of presidential immunity from criminal prosecution in DC has reached the supreme court (he's proposing another immunity in the Florida documents case).

As Michael Dorf lamented, it's been over eight years since Trump, "descended his escalator to destroy American democracy and basic human decency". 

Now there's another election in less than nine months; if Trump wins again, there may be no stopping his mission. 

The world itself is in danger.

Trump has meanwhile gone full fascist: his vermin rhetoric is Nazi talk, and should alarm media who quibbled over Hillary Clinton's mild characterisation of Trump supporters as deplorable. 

The NY Times compiled a list of Trump's frightening rants in a new series of articles designed to alert Americans to the existential danger they face should the bestial Trump be elected this year. More here.

He has spoken of suspending the Constitution, building deportation camps, weaponizing the Department of Justice, purging career civil servants (a long-time project of the quasi-fascist Heritage Foundation), and more, seeking destruction of the "Deep State". 

Trump promises to invoke the 1807 Insurrection Act, a step towards martial law, on his first day in office. It's  all part of an authoritarian playbook for 2025. 

People tend to forget that Donald Trump is an accomplished conman with a lifetime's practice abusing the law; if he wins the election, the powers a president has for pardons, payoffs, and payback will be misused to the fullest extent. He could make some legal troubles go away. 

Meanwhile, in a NY state fraud case, Trump has been fined (with prejudgment interest) $450 million; $112,000 a day accrues post-judgment.

The NY "hush-money" pay-off trial begins March 25. 

The "Mar-a-Lago documents" case for Espionage Act violations and witness tampering is tentatively set for May 20.

Enjoy!

 

FROM ROGER FITCH and our friends down under at Justinian.

 ROGER FITCH ESQ • MONDAY, JANUARY 29, 2024

The cowboys of Texas ... Asserting control over immigration ... Operation Lone Star ... Confederate theory of secession is alive and kicking ... Usurping federal powers ... Trump judges to the rescue ... Wild defence claims in election conspiracy case ... Roger Fitch reports from Washington 

Texas has always asserted its enduring sovereignty, claiming to be the only state that was previously a republic (Vermont disagrees). The state bolted from the Union once: it was almost the first to secede in 1861, and in 1870 it was one of the last readmitted.

Why? It was among the last to ratify the 15th amendment guaranteeing the right of "males" to vote without racial discrimination. 

In fact, the original admission of Texas in 1846 was so contentious and unpopular that, alone among the states, it was done by joint congressional resolution. Texas reserved the right to subdivide into five states, which, happily, never occurred; 108 US senators, ten of them Texans, doesn't bear thinking about. 

When British author John Bainbridge's seminal book about Texas, The Super-Americans, appeared in 1961, the state was still ruled by the same conservative Democrats (today's Republicans) who defended the "White Primary" (disallowed in Smith v Allwright, 1944) and segregated state universities (struck down in Sweatt v Painter, 1950). 

The Bainbridge paperback bore the cover blurb, "an incipient fascist state". Perhaps incipient no more: the majority-minority Texas has been tightly controlled by white-minority Republicans for a generation. Since George Bush's 1994 election as governor, most state-wide officers (governor, lieutenant governor, attorney-general, members of the supreme court and court of criminal appeals) have been Republicans. 

Since the Republicans' unprecedented 2003 do-over of the previous (Democrat) legislature's 2000 census-based redistricting, the party's unshakeable gerrymanders have guaranteed perpetual Republican control of the legislature and state congressional delegation.

In 2019 (in Rucho v Common Cause), a Republican-dominated US supreme court stopped all federal judicial review of partisan gerrymanders at the moment when most gerrymanders favoured Republicans. 

With permanent government assured, Texas Republicans have taken increasingly bold stances against the federal government, and with Donald Trump's extreme Federalist Society judges now in place at all levels of the federal judiciary, the state is reasserting its independence, bringing test cases of Texas's purported sovereign supremacy in sympathetic federal courts. 

It's the 1830s and "Nullification" again, with Texas standing-in for South Carolina. Indeed, 24 of the 25 Republican governors have piled on with what is essentially the Confederate Theory of Secession.

Operation Lone Star appropriates immigration control, though states have no right or power to participate in immigration policy, a federal matter. No matter, Texas found a friend in Drew Tipton, the district judge alternating with fellow Texan Matthew Kacsmaryk as worst Trump-appointed judge.

Texas governor Greg Abbott has also attacked immigration law in Kacsmaryk's court, where ultra vires interventions in federal immigration policies have succeeded. 

Abbott: all hat, no cow

An early Texas victory reached the supreme court, which declined to stay (pending appeal) a Kaczmaryk ruling that Biden could be forced to reimpose a discarded Trump remain-in-Mexico policy (now lapsed) that the Mexican government might refuse to implement.

Wrongly claiming that refugees can only enter the US at state-selected border bridges, Governor Abbott claimed authority over the entire border, placing buoys to deter migrants at shallow river crossings, e.g, near the International Bridge at Eagle Pass. 

When the US sued over "anti-migrant barriers", a federal judge ordered the state to remove the buoys, a decision upheld by a Fifth circuit panel, but the Texas AG, criminally-indicted Ken Paxton, is getting an en banc rehearing before the Fifth circuit, the most conservative (12 of 17 judges are Republican appointees).

The buoys remained, and Texas began rolling out razor wire, including at the state's land border with New Mexico near El Paso. The state also began booby-trapping likely river crossings.

When the federal government removed the river wire as obstructing navigation and access to migrants, AG Paxton sued, claiming the state's razor wire at Eagle Pass had been "illegally" cut by the Biden Administration. 

Paxton's laughable legal theory, trespass against chattels, was rejected, and the district court ruled for the US. On appeal, a Trump-tainted Fifth circuit panel accepted Texas's doctored videos of purported federal inaction and granted an injunction preventing the US cutting the wire. 

Lone Star border control

Texas then wired off more of the border, with the Texas State Guard blocking the US Border Patrol and federal law enforcement, including US military. The state's exclusion of the US contributed to the death of three migrants, and there was a showdown with the Texas Military Forces, who ostensibly act under federal authority.

The Department of Homeland Security sent a polite letter to Paxton, giving him until January 17 to cease and desist blocking US Border Patrol's access to the river; Paxton's reply was puerile and insolent (press release here). 

The supreme court ruled 5-4 for the Biden administration, but Texas continues to flout the law, more here. Worse, the legislature's Senate Bill 4 has taken effect, creating a parallel immigration system where state law enforcement agencies can arrest and deport undocumented immigrants within the state's borders. The New Republic and Steve Vladeck have more.

Clearly, a state law purporting to authorise arrest of "illegal" immigrants is blatantly unconstitutional, usurping federal powers and arrogating to the state the power to issue international deportation orders. More here on Senate Bill 4.

El Paso County and immigrant groups have filed suit in federal court, seeking an injunction. Governor Abbott cannot have legal advice (other than his devious AG's) that the state can lawfully arrest, imprison and deport people; some are entitled to refugee status or parole (e.g, the Republican-hated "humanitarian parole"), others may be legal residents or even American citizens. 

Even so, false arrests have already begun; the many lawsuits that follow will prove costly for the state's employees and taxpayers. 

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The Washington Monthly has a Trump coup trial primer for Special Counsel Jack Smith's election conspiracy case, the "highest-level criminal trial in America" since 1807, when Thomas Jefferson's former VP Aaron Burr was acquitted of treason. This time, jury tempering and witness intimidation are real possibilities. 

VP Burr ... Trump's criminal trial will be bigger 

Trump's coup trial lawyers are pressing for wild and irrational defence claims to be heard by the DC jury, pursuing a laughable, nonsensical and ultimately idiotic argument that he can't be prosecuted for any crimes committed when he was president, arguments that are incredible, inconsistent and incoherent.

In due course, the crybully Trump appeared at the DC Circuit, where his lawyers artlessly argued that he could even assassinate rivals while president, and get away with it, unless previously tried and convicted by the senate, something a mere 34 Republican senators can prevent. 

Trump's argument during his second impeachment in 2021 was just the reverse: that he should be charged, if at all, in a criminal court. Professor Dorf has more. 

Meanwhile, in a shameless election year stunt, Trump's drumhead congress wants to impeach President Biden for what he did before he took office. 

 

From Roger Fitch and our friends down under

LETTER FROM WASHINGTON 

ROGER FITCH ESQ • THURSDAY, NOVEMBER 16, 2023

Trump ramping up his next term ... Wrecking crew of lawyers on his team ... Authoritarian agenda ... New season for the Supreme Court ... Gun rights for perpetrators of domestic violence ... Texas prohibits wealth taxes - forever ... Entrenched voting distortions ... The new Speaker - a Christian Taliban ... Roger Fitch files - Psychiatrist, Salon

As the 2024 presidential election approaches, it's beyond belief that, according to some polls, more than half of America's voters prefer an indicted, mentally-unbalanced, narcissistic sociopath who now claims he won the 2020 election in all 50 states. 

Here's an actual statistic: Donald Trump faces seven significant court cases that are scheduled during the presidential campaign season (handy calendar here). They will continue in some form, despite Trump's absurd motions such as the one to dismiss the January 6 insurrection charges. 

Even Aileen Cannon, the oft-criticised Trump-appointed judge hearing the Florida classified documents case, has tired of Trump's dishonest and dilatory tactics.

Surely, many voters will change their minds after Trump's trials and court appearances. 

This month, the former president testified in New York, in the civil fraud case against The Trump Organization, and Trump's family. 

As expected, he behaved erratically, abusing to their faces both the prosecutor, NY Attorney General Letitia James, and the well-regarded judge, Arthur Engoron. 

In bringing civil rather that criminal fraud charges, Attorney General James laid a trap: in civil cases, a  plaintiff can subpoena a defendant to appear and answer questions, a tactic ideally suited to unsettle an evasive or belligerent defendant, even one with a script. It was a trap into which the ex-president neatly fell.

Clearly, Trump was indignant - outraged - that he, Donald Trump, should be called to account in a court of law. In fact, he essentially admitted to even more fraud while on the stand.

Though he won't be a witness in his criminal prosecutions, Trump is also digging holes deeper in the four criminal cases in which he faces a total of 91 felony charges. 

It's the stuff of Trumpen-Schadenfreude. 

Even so, the defendant is busy planning his next term as US president. In addition to personal revenge, Trump wants to pick up where he left off in his authoritarian remodelling of the country. 

He has begun by recruiting a wrecking crew of meretricious lawyers, legal prostitutes so bad that even the Federalist Society won't touch them. 

It's a frightening thought, seeking, rather than avoiding, intellectually-dishonest, lemming-like lawyers to staff a government, but media reaction has been mild. 

The new gang's reinstatement of Trump's dreaded public-service-gutting Schedule F, overturned by Biden in his first days in office, will top the list for party thugs and mischief-minded legal acolytes.

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Voting: a long threatened right

The 2023 supreme court term has opened, producing understandable unease because of the bad cases on its docket. The first of such cases, predicted to be its worst, was a 2nd Amendment, "gun rights" case, US v Rahimi, and concerned the right to keep and carry firearms when subject to a domestic violence order. 

Applying Clarence Thomas's bizarre test from last season's Bruen case, the Fifth Circuit found Rahimi was entitled to access his firearms as there were no comparable restrictions on gun ownership in the 18th-century. 

That's quite true: there were few, if any, colonial prosecutions for domestic violence. 

Rahimi has now been argued, and contrary to expectations it doesn't look good for "gun enthusiasts".  The court may finally be drawing a line on "gun rights". Michael Dorf has more. 

The supreme court will also be hearing a South Carolina redistricting case that could decide the majority in the next congress. The new districting is pretty clearly racist, but since the 2019 supreme court ruling (in Rucho v Common Cause) that partisan gerrymanders are non-justiciable, the Republican legislature has rebranded the districts as merely partisan. 

It's an irrelevant co-incidence that the voters are black; they were  actually targeted for voting Democrat… 

Meanwhile, on the tenth anniversary of Shelby County v Holder, Americans should reflect on the damage caused by one of the most outrageous decisions in US supreme court history, the opinion that judicially annulled the essential section of Lyndon Johnson's landmark Voting Rights Act of 1965. 

The VRA had only recently been reconfirmed by a near-unanimous bipartisan majority of congress; its extralegal invalidation by the supreme court has never been adequately explained.

The immediate consequence of Shelby County was the introduction of state restrictions on voting that are now notorious: the decision is directly responsible for the ten years of voter disenfranchisement that have followed in Red States, and for the gerrymandered legislatures that are able to perpetuate themselves, as  well as pack and crack congressional districts for the benefit of the Republican party.

Although the US constitution famously lacks an explicit right to vote, 49 state constitutions do contain this right. That's why it's important that state supreme courts remain free of partisan control.

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Not in Texas

November's elections in several US jurisdictions actually boosted voting rights, and were a win for Democrats, including the establishment in Ohio's constitution of a right to abortion that had been bitterly opposed by the Republican legislature.

Further south, in the plutocrat paradise of Texas, there were also constitutional amendments on the ballot. 

In a state with 30 million residents, it took less than 2 million voters to embed a prohibition on wealth taxes that will bind future legislatures forever. 

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Mike Johnson, a Louisiana congressman who played a leading role in the legal ploys of the 2020 Sedition Caucus, is the new Speaker of the US House, second in line for president. 

He's also the first "Christian nationalist" to hold the position, the secular republic's first theocrat Speaker. The Washington Spectator has more. 

Johnson: governing by the Bible

Johnson is a former lawyer for Alliance Defending Freedom, the legal hot-house where novel "religious freedoms" are concocted, embellished with phony plaintiffs and forwarded for high court imprimatur.  It's former staff includes extreme Trump judges including 9th circuit judge Lawrence VanDyke, and Texas's US district court judges Matthew Kacsmaryk and Brantley Starr. 

America experienced theocracy, e.g, New Haven Colony (1638-1664), where only male Puritan church members could vote or hold office, and law was based strictly on the bible. 

The federal constitution of 1789 outlawed religious tests, but eight state constitutions still have them. These unconstitutional provisions are unenforceable since a 1961 Supreme Court decision, Torcaso v Watkins. 

Even so, Speaker Johnson believes in religious tests; it seems he intends to consult the bible the "New Haven" way.  

From Roger Fitch and our Friends Down Under

 

The travesty of America's judiciary

ROGER FITCH ESQ • MONDAY, OCTOBER 2, 2023

Transformation of SCOTUS ... Alito and Thomas's ethical voids ... Rorting and stacking the courts in the Red States ... Circuit mischief ... Trump judges on the loose ... Roger Fitch reports from Washington 

After Donald Trump's presidency, no US government institution, however respected, may be considered safe or immutable. 

Perhaps the most striking change has been the installation of a reactionary and theocratic majority on a rogue supreme court.

The court's new term is about to start, with grave consequences likely; with a prospect that the court may claim even more power. 

Perhaps it's time to reflect on the court's transformation under its tiresome Chief Justice John Roberts, in the years leading up to this term. In the view of the veteran court observer Linda Greenhouse, the CJ has already achieved everything he set out to do in 2005.

He had the help of justices who had all worked in Republican administrations (Alito, Thomas, Gorsuch,  Kavanaugh) or participated as loyalist Republican lawyers in Bush v Gore (Kavanaugh, Barrett).

During the CJ's early years, the sleeper cell of Sam Alito (appointed 2005) and Clarence Thomas (1991) lay low, awaiting the moment some timely death (e.g, that of Ruth Bader Ginsburg) might make them part of an originalist majority. 

The Republican Senate's refusal to confirm Obama's appointee Merrick Garland (now Biden's AG) brought forward plans, and the unexpected 2016 election of Trump fully activated the two men and their intractable rightwing agenda - witness last year's full-throated implementation by Alito of Catholic abortion policy (Dobbs), and Thomas's expansive, indeed shocking, gun decision (Bruen).

Justices Thomas and Alito both have shocking ethical standards, but the court has declined to adopt an ethics code. Alito actually claims congress has no power to legislate respecting the court, but that's clearly wrong.

Compounding his own ethics problems, Alito recently gave a controversial WSJ interview refuting a yet-unpublished Pro Publica article about him. The interviewer? A lawyer with business before the court. 

Alito: enforcing Catholic abortion policy on the court 

Thomas's ethics offences are even greater, and arguably impeachable. 

One law prof's suggestion: a declaratory judgment of violations under the federal recusal statute, to "clarify for the voters whether they should accord legitimacy to the high court". 

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The US supreme court's rulings may not have been openly bought, but that can't be said of some of the 31 state and territory jurisdictions with partisan judicial elections; there, political parties and special interests promise that their favoured candidates, if successful, will faithfully alter existing judicial precedents.

A number of state constitutions have embedded in them rights and protections, e.g, personal freedoms and the right to vote, exceeding those in the US constitution. These are regarded by Red State legislatures as impediments to the reordering of society they intend. 

Consequently, following the US supreme court decisions disclaiming any responsibility for abortion or partisan gerrymanders, Red States have resorted to "turning" the state courts whose decisions - based on state constitutions - might, e.g, liberalise abortion or end gerrymanders. 

Recently, such supreme court rebalancing has occurred in Republican Ohio and North Carolina, and Democrat Wisconsin, where the judicial philosophy of the supreme court has been reversed by expensive elections of party-aligned justices. 

The undisguised objective in Republican states is to obtain the state supreme court's blessing for partisan gerrymanders that the US supreme court (in Rucho) found non-judiciable under the federal constitution. 

Such elections don't always bring finality. In Wisconsin, the Republican legislature has a veto-proof majority, and is already talking about impeaching Wisconsin's newly-elected, Democrat-aligned, justice. A vacancy would tie the court and thwart appeals against gerrymanders. 

Racial (as against partisan) gerrymanders remain illegal. Alabama's race-based gerrymander has been knocked back twice, more here, and other southern states will also have to create additional districts with an African-American majority. 

Trump's judicial Ho-Ho 

Democrats could pick up several house seats as a result. Or maybe not: the Trump-dominated Fifth Circuit has intervened on party lines to stay and delay Louisiana's new district. 

Behind this circuit mischief we find James C Ho, a former Texas Solicitor General and perhaps Donald Trump's most dreadful appellate appointment.

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The most appalling federal judges appointed by Donald Trump are in the South, where the 5th and 11th circuit courts of appeal have been stacked with Republican ideologues. 

At the same time, careful and reticent federal district court judges in the two appellate circuits have seen their influence reduced through the appointment of  brash Federalist Society protégés, ambitious and proactive men and women ready to declare executive orders of (Democrat) presidents, and even established Acts of Congress, invalid.

The worst of these Trumpistes have been appointed to single-judge federal districts (e.g, Aileen Cannon in Florida), thus simplifying conservative forum-shopping.

Texas has been the centre of most of this; the state offers a textbook example of the express train that transports "movement" Republican lawyers from elected (attorney general) or appointed (solicitor general) state offices to lifetime judicial appointments on the federal bench.

A previously unremarked Trump appointee in Texas, Brantley Starr (Ken Starr's nephew) has surfaced and is already being called the worst Trump judge in America. 

In one ruling, Starr ordered an airline's lawyers to take "religious liberty training" conducted by the Alliance Defending Freedom. That's the "Christian" litigant systematically rolling back civil liberties, e.g, in 303 Creative v Elenis, last June's fraudulent supreme court decision that licensed discrimination against sexual minorities on the basis of claimed religious beliefs. 

The lawyers obtained a temporary stay.

Starr joins the pungent company of fellow Texan Matthew Kacsmaryk, another "worst judge".  In Alliance for Hippocratic Medicine v FDA (also an ADF case), Kasmaryk struck down the FDA's 2000 approval of the abortion drug mifepristone. 

 Kacsmaryk's appointment met with alarm 

Limitations having run, the Fifth Circuit quickly reversed.

Yet another Trump-Texan, Drew Tipton, attempted to stop an immigration policy at the behest of Texas and Louisiana. As neither state had standing to sue, the supreme court overruled Tipton without reaching the question of states exercising immigration powers or purporting to participate in immigration policy, exclusively a federal matter. 

Neighbouring Louisiana also has an activist Trump judge, Terry Doughty, who has issued an "aberrant" First Amendment decision constraining Biden administration communication with tech companies such as Facebook. 

One journo suggested that Judge Doughty had effectively named himself president. More here.

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With luck, there will be no more Trump judges. Here's an update on Trump-related trials:

•  September 29 - Georgia state RICO case - first guilty plea by a Trump co-defendant;

•  October 2 - Trump's bench trial in NY for civil damages; judge has already called in receivers after entering summary judgment for fraud;

•  October 23 - Georgia RICO co-defendants Chesebro and Powell face trial, and could plead out;

•  January 15 - NYC civil trial to determine the measure of damages for Trump's renewed defamation of the writer E Jean Carroll;

•  March 4 - Trump's DC trial for election-interference;

•  March 25 – tentative date for Trump’s NY State trial for hush-money payments to Stormy Daniels;

•  May 20 - Trump's Florida trial for mishandling classified documents.