Mixed bag from SCOTUS
Supreme Court wraps up its latest term with some notable shockers ... Another stick of gelignite to blow up the Voting Rights Act ... Secrecy for rich donors to political causes ... But freedom for profane speech ... Department of Justice going slow on prosecuting Capitol insurrectionists ... War criminal and former defence secretary dead at 88 ... Roger Fitch files from Washington
The supreme court has concluded its October 2020 term. Decisions were mixed, but in the most important case, Obamacare was upheld for the third time against the baffling efforts of Republicans to destroy it.
In other matters, the court's conservative Catholic faction, joined by liberals, was able to retrieve the fortunes of the Philadelphia diocese, who claimed a continued right to participate in foster care referrals despite their policy of non-referral to same-sex foster parents. More here on the 9-0 decision and it's likely aftermath.
The decision of the court in the Nestlé and Cargill cases, respecting applicability of the Alien Tort Statute to corporate human rights abuses overseas, was expected - but provided a disappointing and alarmingly broad immunity for corporations. Only Justice Alito dissented.
The unanimous NCAA case, though fair to college athletes, represented a set-back for antitrust law.
In the disturbing case of TransUnion v Ramirez, the Supreme Court held 5-4 that if plaintiffs cannot prove that their (incorrect) terrorist designation has actually been reported to third parties, they cannot sue because they lack a "concrete" injury under the court's (extremely-flexible) standing doctrine.
As Michael Dorf explains, "That Congress had passed a law permitting individuals to sue credit agencies that fail to use reasonable procedures to ensure the accuracy of their credit reports did not matter".
There were "liberal" lst and 4th Amendment cases. The free speech case Mahanoy v B.L. affirmed a decision involving a school cheerleader's Snapchat profanity, while in Lange v California the supreme court narrowed police powers to enter a home without a warrant.
Property rights versus civil rights have been at the heart of constitutional conflict since the document was adopted, and a so-called employers' rights decision in the final days of the term was further proof. A powerful union-busting decision, Cedar Point Nursery v Hassid could be the biggest ideological stinker of the court's term, an important step in the conservatives' ambitious dismantling of Roosevelt's New Deal.
HollyFrontier Cheyenne Refining was another corporate victory. Without the help of the newest justice Amy Coney Barrett who joined the liberals, the conservatives made a free gift to polluting companies; ironically, the decision issued on the same day congress used its powers to disallow Trump's methane-boosting regulation.
In two other cases, Collins v Yellen and Arthrex, the supreme court conservatives actually enhanced Biden's powers, increasing executive authority.
The court's two deadliest decisions, however, were dead last.
Americans for Prosperity v Bonta will guarantee secrecy for rich donors to highly-political non-profits. The court accepted the non-profits' disingenuous claim that California's contribution disclosure rule violated their donors' First Amendment rights by deterring them from making contributions.
Supreme Court prefers Republican voters
In the Brnovich case, the Democratic National Committee brought suit against new voting restrictions in Arizona under s.2 of the Voting Rights Act 1965, one of the few remnants left after the court gutted the VRA in the infamous Shelby County v Holder decision of 2013.
Some Democrats feared that the DNC's stand against relatively minor voting restrictions would open the door to a broad-based supreme court decision, and so it transpired as a Republican supermajority greenlit Arizona's voting restrictions, essentially rewriting s.2 in the process.
Although s.2 of the VRA was not, as feared, annulled, the conservative majority seized upon the case to rule that disparate impacts on minority groups (what used to be called poll taxes) would "typically" not be enough to render voting rules illegal under the VRA.
The majority then diabolically set out, among salient factors, "the degree to which a voting rule departs from what was standard practice when §2 was amended in 1982": carte blanche for banning postal voting, drop boxes, same day registration, extended hours and other voting innovations.
DoJ's first use of s.2 will be against Georgia's new state voting law; the charge is intentional discrimination.
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Biden's AG Merrick Garland has adopted some Trump legal postures, such as defending "faith" as an acceptable ground for LGBTQ discrimination. The president, however, has ended an embarrassing Trump regulation that licensed gender discrimination in health care, based on one's claimed moral or religious views.
In a pending appeal brought by Trump's DoJ, the Biden administration has argued for the reinstatement of the death penalty in the Boston Marathon Bombing case, even though the president personally opposes capital punishment.
The attorney general has, however, paused Trump's deadly campaign of federal executions, and Biden is being urged to commute all outstanding sentences and, presumably, abandon the Boston bomber appeal.
E. Jean Carroll is suing Trump over the former president's denial that he raped her ... Trump claims immunity
The Justice Department is also defending pending lawsuits against Trump, e.g. Jean Carroll's defamation action. Is there some tactical justification? As a Nation writer noted, "slandering alleged rape victims is not one of the official duties of the president".
Some doubt moderate AG Merrick Garland's commitment to prosecuting "Trump's mob", i.e. the Capitol insurrectionists, but he has made a start on other Trump malefactions by e.g. disclosing compromising documents of the old regime that were found within the Justice Department. Thus, Garland released the outrageous draft brief that Trump wanted the DoJ to file in the supreme court, seeking to overthrow the election results.
More here and here on Biden's attorney general.
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The long-expected criminal indictments of the Trump Organisation for tax fraud have finally been filed. So far, Trump hasn't been indicted, but one US newspaper (the Boston Globe), is calling for the criminal prosecution of the former president himself. At least his reputation as an egregious tax cheat has bolstered bipartisan support for more vigorous enforcement of federal tax laws.
There's an updated litigation tracker for Trump. As for other members of the gang, new evidence of old crimes by his cabinet cronies is still emerging.
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Rumsfeld: The Butcher of Baghdad
As Le Monde politely reported, "Donald Rumsfeld, ancien secrétaire à la défense américain et architecte des guerres d'Irak et d'Afghanistan, est mort".
Or, as less respectful American opinion put it, "War Criminal Found Dead at 88"; "He Played a Leading Role in Mass Murder"; "Rumsfeld represented the very worst of American arrogance and violence toward the rest of the world"; "a tragedy that Rumsfeld died before he could be put on trial for crimes against humanity"; and "worst secretary of defence in American history".
The Machiavellian Rumsfeld escaped the hangman's noose; under Nuremberg principles, he'd have gone to prison if not the gallows. Instead, the disgraced former secretary of defence outlasted the Abu Ghraib scandal, the ACLU's Ali v Rumsfeld, multiple European criminal proceedings, and dozens of cases involving Pentagon actions in Afghanistan, Iraq and Guantánamo.
He escaped thanks to the protection and stonewalling of successive US governments, including the repeated bad-faith invocation of the "state secrets" privilege.
It's a sad chapter in American legal history.
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