The morning after
The trickle down judiciary ... Novel legal theories the order of the day ... No precedents required ... Trump's debauchery of the courts is coming home to roost ... Forum shopping for "Trump judges" ... Gilead fermenting ... High noon for the Murdochs ... DeSantis' torture taint ... Roger Fitch's Letter from Washington
Washington is pretty quiet. The supreme court has not announced any major mischief, and the Republican majority in the house have barely started their strategy of wild goose chases and investigating Democrats.
Democrats usually lose the house due to gerrymanders that give Republicans control with a minority of the voters, but this year, Republicans actually won: by 6,675 votes.
At the moment, congressional Republicans are more interested in spoiling the January 6 investigation conducted by the previous house, and Speaker McCarthy set that in motion by handing over the January 6 committee's video surveillance footage to Tucker Carlson, who may be forced to share it.
The Fox choice aside, Democrats expressed concern that revealing security arrangements in the Capitol endangered all members of congress and their staff.
The selection of Fox is understandable: Rupert Murdoch's American venture has attained quasi-official standing as a party propagandist, a position his media outlets failed to achieve in Australia or Britain.
In the US, Fox is openly acknowledged by Republicans as the party's representative and spokesman, a status firmly established during Trump's "Fox White House".
Fox has a long history of Republican alliance. In 2000, the network arranged for John Ellis, a "freelance political adviser" to head their elections night "decision desk", and it was Ellis who (prematurely) called the election for his first-cousin George W. Bush; Fox was the first network to "call" the election, a curious American practice.
In 2020, however, calling Arizona and the election for the Democrat Biden proved disastrous; millions of outraged Trumpenvolk took their custom elsewhere, mainly to the execrable Newsmax.
Carlson and Trump: a big laugh
Out of desperation, the Murdoch talking heads took up the cry of a "stolen election", knowing it was untrue, and attacked by name the election equipment company Dominion Voting Systems.
Fox's duplicity has now been revealed during discovery for the resulting $1.6 billion libel suit by Dominion, and Schadenfreude abounds.
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Americans are still debating the 10 worst supreme court moments of 2022, and watching for signals of this term's impending decisions, some possibly partisan.
The number-one worry for democracy, as well as Democrats, has been the now-argued Moore v Harper, pushing the alarming independent state legislature doctrine. It's a new theory, although the late CJ William Rehnquist posited its existence in the notorious Bush v Gore of 2000.
It may be what Jack Balkin calls an off-the-wall idea, but it's a theory with legs, thanks to a $90 million infusion of "dark money", i.e, secret and unregulated.
A foul odour still lingers from the last supreme court term. It's the diabolical second amendment test enunciated by Clarence Thomas in the appalling Bruen case. Following the bizarre logic of Thomas, the hyper-reactionary 5th circuit knocked out gun restrictions against men under domestic violence orders, on the basis that there were no such orders against men in the 18th century. More here.
Thomas: holding firm to the 18th century (pic. Reuters)
One of the reasons the current high court is so attached to the 18th century social setting appears to be the enhanced role that men had at that time. Staying in the past allows the court to conveniently ignore the current society in which they would rather not be living.
The court risks becoming a Taney court, i.e, like that of Roger Taney, the disgraced pre-Civil War chief justice of Dred Scott notoriety.
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America's imperial supreme court is being assisted by obeisant courts below. Donald Trump did untold damage to the lower courts, and in a trickle-down effect, lower federal courts staffed by Republican-appointees (mainly Trump's) are pushing novel legal theories that are presently without precedent, anticipating or inducing the support of the far right cabal that now controls the nation's highest court.
In this supreme court, Trump's executive orders received nothing but deference, under what seems partisan rules; Biden's orders, by contrast, have been overturned, and Trumped lower courts are leading the way.
Any uncongenial decisions of courts of appeal are disposed of through the supreme court's shadow docket: orders giving no reasons and leaving fewer precedents for decisions by moderate lower courts.
The best district courts for Republican-aligned bomb-throwers to upset established law are in Texas. The Justice Department has in fact had to crack down on aggrieved "conservatives" forum-shopping rightwing Trump judges in the state, more here.
It's too late for one case, where a cherry-picked Trump appointee has actually been asked to declare an FDA approval invalid. Trump judges have already interfered in other federal responsibilities, e.g, immigration law, so why not in federally-regulated morning-after pills and contraception?
The judge, Matthew Kacsmaryk, sits in Amarillo in the Texas Panhandle; he previously worked for the "First Liberty Institute", which frequently litigates "religious liberty" cases before the Supreme Court.
As law prof Steve Vladeck notes, Donald Trump succeeded in appointing such judges to single-member districts: any new suit filed in Amarillo is sure to go to Judge Kacsmaryk, any suit filed in Wichita Falls goes to Reed O'Connor, and any suit filed in Victoria goes to Drew Tipton, the border control expert.
Judge O'Connor, you may recall, attempted (unsuccessfully) to kill off the entire suite of Obamacare legislation, and more recently, he declared invalid key parts of the Indian Child Welfare Act.
That appeal, already heard by the supreme court, could result in a successful attack on native American rights (more here on the ICWA).
Haaland v Brackeen, begun by Anglo parents seeking an Indian child adoption, has been shamefully joined by the states of Texas, Louisiana and Indiana. It's another opportunity for partisan Republican state attorneys general to tell the supreme court's conservative majority what they want to hear.
Lithwick: honour of the justices remains in question
What will the extremist supreme court's next agenda be? Dahlia Lithwick is concerned about Dobbs and its implications, while Linda Greenhouse worries about the push for religious supremacy.
For Marcia Coyle, the most frightening trajectory is that of last term's Bruen, launching a gun culture beyond the control of any government.
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Little seems to happen at America's longest-running injustice, Guantánamo. Lately, however, there have been developments: two prisoners, brothers, have been repatriated to Pakistan; 32 prisoners remain.
The Rabbani brothers were held for 20 years, although Ahmed's initial detention was one of mistaken identity. They were never charged, and left Gitmo with nothing.
Another recently-released Pakistani, Majid Khan, was charged and pleaded guilty. Khan's horrific CIA torture was publicly aired at his sentencing and resulted in an earlier release.
He's just been resettled in Belize, with a furnished house, car, laptop and phone, surely the first time the US ever provided reparations for torture.
Meanwhile, there are credible Arab accusations of torture participation by a young JAG lawyer stationed at Gitmo in 2006. He's been identified by detainees as Lieutenant DeSantis.
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