From Roger Fitch and our friends down under at Justinian

 

SCOTUS hollows out America

ROGER FITCH ESQ • TUESDAY, MAY 31, 2022

US Supreme Court ... Overturning Roe v Wade and other travesties ... Using religious beliefs to alter secular law ... Gutting civil rights remedies ... Looser gun regulations ... The malignant Fifth Circuit ... From Our Man in Washington, Roger Fitch 

"…[I]t's time to discuss religion whether we like it or not, because it's no longer knocking on the door: Sam Alito just sent it in the house with a no-knock warrant and stun grenades that threaten to catch the place on fire" - Thom Hartmann

With Trump gone, the focus in Republican psychopathology has turned to individual supreme court justices, e.g, the ethically-challenged Clarence Thomas, yet one should never forget his fellow-traveller, Sam Alito, because Justice Alito is one angry man. 

There's been an unprecedented leak of Alito's draft majority opinion in the forthcoming abortion decision, Dobbs v Jackson Women's Health, set to overrule Roe v Wade, and the justice's grasp of history has been faulted: resurrecting ancient common law, he applies a legal narrative more consistent with the 17th century than a US history with remedies for "quickening".  

Some see an intellectually-dishonest exercise designed to mask Alito's orthodox, powerful, but legally-irrelevant Roman Catholic beliefs: consider his alarming footnote on a shortfall in adoptable infants. 

It seems a foot in the door for a faith-based system in the US where religiously-defined morality displaces law, a nation where religious adherents become the most sympathetic plaintiffs before a court that intends to use religious belief to alter secular law.

Overturning Roe v Wade is, in this analysis, but one front in a religious war against America, and the draft opinion suggests that the conservative justices don't plan to stop with Roe. The impression that they don't mind being an extension of the Republican Party has lawyers wondering what's coming next. 

Dobbs will have consequences, as many civil rights will be threatened, e.g, same-sex marriage. The leak itself may affect decisions in other cases: e.g, guns and environmental protections..

Most fundamentally, the Dobbs draft endangers the right to privacy first formulated in 1890 by the revered future supreme court justice, Louis Brandeis, and the 1923 decision adopting it. 

Alito: intellectually dishonest

According to law prof Melissa Murray: 

"A decision overruling Roe v. Wade would threaten an entire line of jurisprudence rooted in the 14th Amendment's guarantee of liberty ... [going] back to a 1923 decision guaranteeing parents the right to raise their children free of undue state intervention, and it includes the right to marry, the right to engage in adult sexual relationships and the right to use contraception." 

Besides birth control, medical assistance in pregnancy is in question, even after miscarriages, and creation of life in vitro. 

Sherry Colb believes IVF treatment won't be a problem: for Alito: 

"... women are soil where men can plant their seeds, and soil has no right to uproot the plants that start growing. People who seek IVF, by contrast, do not challenge the role of women in our society. IVF places women in a state of pregnancy, which is where [Alito] wants them."

≈   ≈   ≈

Even before the "abortion leak", the supreme court began gutting civil rights remedies: at least five radical decisions are already out. 

The court upheld Ted Cruz's leveraged buyout of his senate seat, where he "loaned" himself the purchase price, and investors repaid him after success, a scheme characterised as "streamlining the process for bribing senators". 

It was another case of the court "weaponising" the First Amendment to knock out campaign finance restrictions, more here. 

Cruz: owned by his campaign investors

Money talks, and has a constitutional right to do so, never mind where it comes from or the circumstances in which it's paid. 

While "green-lighting political corruption", the court made immigration more difficult. In Patel v Garland, a decision by the court (Gorsuch dissenting) made it harder to rectify immigration injustices.

Criminal justice also took a hit. In Shinn v Martinez Ramirez, the court effectively decided that death row prisoners "don't deserve competent lawyers", with the Republican majority further hollowing-out habeas precedents, more here. 

Michael Dorf and Liliana Segura commented on the selective treatment of precedents by the court.

Anti-discrimination law was not left undisturbed. In Cummings, the court struck out liability for emotional distress damages, making it easier for employers to discriminate. However, shortly after the opinion was released, it was discovered that a 2009 amendment to the federal Rehabilitation Act at issue provided just such relief. 

All parties involved had been unaware of the mistake. A petition for rehearing has been filed and the court should vacate its decision, but will it?

What's next this term?

Notwithstanding the school shooting in Texas and the arguably sordid origins of the Second Amendment, the court is almost certain to broadly expand "gun rights" by loosening effective arms regulations in those states which (unlike Texas) have effective and long-standing gun laws. 

It's part of the lust for unfettered access to guns for personal use, outside a military or defensive context or demonstrated need, a public  mania first sanctified in the appalling Heller decision (2008). 

More guns, less regulation

The early cases in this court's judicial activism centred on city and state laws and regulations, but more recently the astonishing Shelby County v Holder (disembowelling the near-unanimously re-enacted Voting Rights Act 1965) and Citizens United v FEC (striking laws limiting political contributions) presented a new and greater problem: judicial nullification of Acts of Congress. 

Formerly a rare event, it's been reignited by a supreme court bent on giving more power to autocratic (mostly Republican) states.

Hardened Republicans among the party operatives appointed to the federal bench by Donald Trump are still trying to implement the programs of the disgraced and departed president, especially in the district courts of the fifth circuit where, 18 months after the Trump administration was removed, a court is preventing Mr Biden from altering Trump policies in immigration, a field where states have no authority. 

The fifth circuit judges have also betrayed a stunning ignorance of First Amendment jurisprudence in upholding a new Texas internet censorship law imposed on social media. A Lawfare Podcast has more. 

With its 12 Republican appointees (six of them Trumpistes) the fifth remains the most malignant of the circuits. In an unprecedented recent ruling, Jarkesy v SEC, a divided panel rewrote administrative law to require a jury trial for defendants (in this case a hedge-fund trader) in a civil, not criminal, suit by the SEC. 

As Vox headlined, "A wild new court decision would blow up much of the government's ability to operate". 

Interestingly, the panel's astounding decision was tipped by the inclusion of the Trump-appointed judge Andrew Oldham, a former law clerk for Justice Alito. 

Congressional legislation is now needed to fix the supreme court's legislating efforts affecting corporate regulators like the SEC and, even more urgently, the FTC. 

Meanwhile, Trump's holdover statutory appointees to such commissions continue to obstruct the new government's initiatives, e.g, the Federal Electoral Commission's investigation of Trump regime money laundering. 

From Roger Fitch and our friends down under at Justinian.5.3.2022

 

Trump judges rule the roost

ROGER FITCH ESQ • FRIDAY, APRIL 29, 2022

Unqualified judicial appointments prop-up Republican agenda ... Gerrymanders tip democracy off its perch ... Tame media recycles the fictions ... CJ Roberts changes sides ... Government torture back on the rack ... America the not-so-beautiful ... Roger Fitch,  Our Man in Washington, reports 

The apostate Democrats Joe Manchin and Kyrsten Sinema joined the full party caucus of 50 senators in confirming Ketanji Brown Jackson for the supreme court. 

Justice Jackson also received the votes of three Republican senators clinging to shreds of decency while their fellow senators engaged in shameful displays of dog-whistle racism.

One of the three, former presidential candidate Mitt Romney, now represents Utah. Sadly, the state's other senator, Mike Lee, is the first Republican to announce the emerging Republican Party consensus that America is not a democracy, or, as Tocqueville inferred, need not be.

Republican-fascists (as some call them) are now running rampant, while American media daily validate AJ Liebling's view of the press as "the weak slat in the bed of democracy". 

The Republican Party, whose practices are sometimes compared to those of the Stasi, already controls a supreme court that shares its ideology.

Once, the joke was that the only consistent principle found in supreme court decisions was that the government always won. Now, it's the Republican Party. How else to explain the court's selective use or abandonment of precedent and even oral argument?

The court has emboldened partisans stuffed on lower federal courts by Trump's rubber-stamp senate, judges that are now President Biden's biggest impediment to governing, e.g, cleaning up the Trumped-down environment. 

One such is a Trump appointee to the 9th circuit, the rude and bonkers Lawrence VanDyke. VanDyke was a Trump nominee found "not qualified" by the American Bar Association, and at his confirmation by the Senate, the ABA summed him up thus: 

"Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules ... the nominee lacks humility, has an 'entitlement' temperament, does not have an open mind, and does not always have a commitment to being candid and truthful ... [he] would not say … he would be fair to any litigant before him, notably members of the LGBTQ community." 

Judge VanDyke: bonkers

Trump's district courts are also doing their part, issuing astounding orders along Republican Party lines, including this one by another Trump acolyte the ABA found "not qualified", Florida district court judge Kathryn Mizelle, whose anti-science face mask ruling conceals what Michael Dorf calls an ideological opposition to the administrative state.

As Dorf noted: 

"Judge Mizelle's ruling ... reflected the sort of extreme right-wing ideology in which she has been marinating for her admittedly brief career - an ideology that is hostile to government agencies addressing even the most pressing social problems." 

The Biden administration appealed the decision to the 11th circuit, where a majority of judges were appointed by Trump. There, as in the 5th circuit, where 12 of the 17 judges are Republican-picked, and in the 6th circuit, where 11 of 16 judges are Republican choices, the administration faces steep odds against success, with many Trump-appointed "movement" judges willing to set-up Party causes, e.g, those involving state voting rules and national immigration policy (more here) for supreme court success.

≈   ≈   ≈

Ohio was once the Republicans' key to stealing presidencies (e.g, George Bush's "re-election" of 2004), but lately it's let the side down, with a state supreme court that refuses to go along with party-favoured gerrymanders.

The solution? An appeal to the 6th circuit, where a panel of three judges - two appointed by Trump - swept aside the decisions of the Ohio supreme court respecting legislative districts and pushed back redistricting to the 2024 election cycle. 

It was a blatant ploy to ensure the Republican gerrymanders that followed the 2010 Census will be used in the 2022 elections. 

The future of such circuit decisions on appeal may be surmised from the supreme court's treatment of the Wisconsin districting dispute, with its contorted ruling on the state's court-ordered redistricting. 

Wisconsin is one of six states Republicans rely on to steal the next presidency, and the supreme court seems determined to keep it Republican. On remand, the Republican-controlled state supreme court gave the party all it desired.

Gerrymanders aside, research indicates Trump voters are not the sharpest tools in the box, and are highly vulnerable to the continuous lying of Republican Party surrogates like Fox News. It's alleged election fraud and other misinformation from which new voting obstacles arise - in Texas, Republicans are already reaping spectacular benefits that this court won't disturb.

≈   ≈   ≈

Roberts CJ: court derailed

There are signs that American lawyers are fed up with their country's new right-wing activist supreme court. Even the conservative chief justice seems to be distancing himself from the five most feverishly-political judges.

In recent cases, CJ Roberts has changed sides, joining the liberals in their dissent criticising the right-wing majority's misuse of the "shadow docket", i.e, emergency orders, made without full briefing and argument. 

Apart from court expansion, there are few options for fixing a court that has run off the rails. 

≈   ≈   ≈

When tiring of Trump's unpunished crimes, we can reflect upon those of George Bush, and one of Mr Bush's greatest crimes, official government torture, is back in the news. 

In March, the supreme court decided Zubaydah, accepting the government's "state secrets" claim which blocked the testimony of CIA contractors accused of torture.

Captured by the FBI and CIA, Abu Zubaydah was the first to endure the CIA's "Enhanced Interrogation" (Gestapo "verschärfte Vernehmung"), a program for the systematic torture of "war of terror" prisoners. 

 Zubaydah spent four-and-a-half years in CIA torture camps operated at sundry sites including Thailand, Poland and Lithuania (both paid damages), and Guantánamo. He's been held now for 20 years.

The FBI agents John Kiriakou, who led the capture of Zubaydah, and Ali Soufan, who first interviewed him, opposed the takeover of the case by the CIA, who sent Zubaydah to Thailand for "interrogation" by  James Mitchell and Bruce Jessen. 

Water-boarding began, Zubaydah nearly died, and no productive intelligence was derived. Nevertheless, water-board torture continued under the new camp director, Gina Haspel. 

Later, when Zubaydah was held in Poland, the morbidly-curious CIA agent Alfreda Bikowsky made an unauthorised visit just to see him being tortured. 

Where are they all now? John Kiriakou is out of prison (another story) and blogging on Zubaydah. Ali Soufan heads the Soufan Group security consultancy, and sponsors Fordham Law's Center on National Security, and Mitchell and Jessen aren't testifying in Poland's investigation, thanks to the supreme court.

Gina Haspel, since rewarded as Trump's CIA director, advises King & Spalding clients on cybersecurity.

Scheuer: torture team

And Alfreda Bikowsky? Since retiring, the Agency's "Queen of Torture" has been hawking beauty products and life advice for a living. The fabled red-haired member of the Agency's torture team, now married to the equally-odious torture team member Michael Scheuer, recently gave an unrepentant interview to Reuters. 

Is this a great country, or what? 

From Roger Fitch and our friends down under. 4.1.2022

 

The Ginni and Clarence Show

ROGER FITCH ESQ • THURSDAY, MARCH 31, 2022

Wife of Supreme Court justice actively involved in political issues before the court ... Mrs Thomas - a conspiracy theorist and extremist who wants to overthrow the 2020 election results ... Clarence Thomas a poor quality court appointment ... The race issue ... Anita Hill ... Conflicts ... Failure to recuse ... Further blight on an already damaged US Supreme Court ... Roger Fitch reports 

"Do not concede. It takes time for the army who is gathering for his back". 

"Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters,etc) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition" - emails of Ginni Thomas (Mrs Clarence), to Mark Meadows, White House Chief of Staff. 

Ginni and Clarence Thomas at Trump's White House dinner for Scott Morrison

Clarence Thomas has a "woman problem", and it's not the first.

In March, just as the supreme court justice found himself deep in his latest such problem, the US congress was - at last - adopting a federal Anti-Lynching Law. 

One was immediately reminded of 1991, when the newly-appointed Justice Thomas, an African-American, famously claimed he had received a "high-tech lynching" at the hands of the Senate Judiciary Committee vetting him for the court.

Thomas survived his senate ordeal, and is the longest-serving member of the present court, but in 1991, credible allegations of sexual harassment nearly prevented his confirmation. 

Even before the harassment allegations against Thomas arose, there were many reasons that Democrats and lawyers might have questioned his suitability for the court. He had reactionary legal views, and was inexperienced; more than that, it was an insult to the person he would succeed - Thurgood Marshall, the great civil rights lawyer, the US's first African-American solicitor-general and supreme court justice. 

Of course, appointing justices who are different in judicial philosophy to the justices they replace is not unknown, witness the recent confirmation (but only by Republicans) of the anti-feminist and extreme conservative Amy Coney Barrett for the position of the late feminist icon Ruth Bader Ginsburg.

To many, however, the nomination of the unremarkable Clarence Thomas seemed to reflect a cynical assumption by Republicans that nomination of a mediocre and little-known black lawyer would be enough to assure confirmation by Democrats, who would not wish to be seen opposing a black candidate.

Clarence Thomas had attended Yale Law, and had briefly served on the DC Circuit, but only one of the 12 members of the American Bar's prestigious Standing Committee on the Federal Judiciary found him to be "well-qualified", and three found him "unqualified" or abstained; the overall vote was "qualified". It may be the lowest level of support ever given a US Supreme Court nominee by the ABA.

The Democrats had a majority, 56 of the 100 senators, and need not have confirmed Thomas at all: aside from his lack of qualifications, he had already demonstrated incompetence in the Bush administration, as chairman of the Equal Employment Opportunity Commission, where he employed the lawyer Anita Hill.

The Senate Judiciary Committee, chaired by Sen. Joe Biden of Delaware, avoided the competence issue. Instead, the ultimate success of the appointment was to turn on allegations by Anita Hill of sexual harassment during Thomas's tenure as chairman of the EEOC. It proved to be an unwise issue, with the presence on the all-male committee of morally-compromised men, e.g, Ted Kennedy of Massachusetts. 

Biden and Kennedy - despite Anita Hill's allegations they put Thomas on the court

In the end, the Democrats were successfully wedged on the race issue, and 11 Democrat senators joined 41 Republicans to get Thomas across the line. There were abstentions, and two Republicans voted against him. It remained one of the lowest votes for a justice until 2018 when Brett Kavanaugh crept in, 50-48, despite his own, similar, problems.

≈   ≈   ≈

It's fair to say that Justice Thomas has long had another "woman problem": his wife Virginia Lamp Thomas, who's always been known as an active and partisan Republican, from the same extreme conservative Catholic strain as her husband.

In 2000, as the NY Times noted at the time, Ginni Thomas was working at the right-wing Heritage Foundation, a Republican Party surrogate, matching CVs of the party's faithful with anticipated positions in a Bush administration, at the very time the election was being determined in the misbegotten Bush v Gore then being argued before her husband. 

Justice Thomas did not recuse himself, and Gore lost before the court by a 5-4 vote. In fact, there were two other "Bush" justices who should have recused: then-CJ William Rehnquist, and then-Justice Antonin Scalia, whose lawyer children expected high positions in a Bush administration (Janet Rehnquist became Inspector General for Health & Human Services, and Eugene Scalia became Labor Department Solicitor).

More recently, questions have been raised about the political activism of both Justice Thomas and his wife, who openly admits attending the January 6 Trump rally that led to the Capitol break-in.

The New Yorker's Jane Mayer and the NY Times have responded with deep dives into Ginni Thomas's political activities and the possible conflicts for her husband arising from them.

The problem is not that Justice Thomas's wife is a political radical, or even (as is suggested) an insurrectionist, but that the documents disclosing this were contained in the materials provided by Trump's former Chief of Staff Mark Meadows under subpoena to the congressional committee investigating the January 6 Capitol break-in, and the validity of such subpoenas was subject to a supreme court appeal. 

In that appeal, Clarence Thomas was the only dissenter in the court's decision declining to interfere in the disclosure of the Trump documents to the congressional committee. Among those documents were the arguably seditious (if not outright crazy) emails sent by Ginni Thomas to Trump's chief of staff Mark Meadows following the election.

The documents urged Meadows to overturn the 2020 election. 

Anita Hill ... the Clarence Thomas scandal has a long history

It's an unprecedented scandal: Ginni Thomas's emails even allude to her views being shared by her "best friend", surmised to be her husband. 

Leading legal ethics experts say that Justice Thomas must now recuse himself from any matters arising from the events of January 6th, including "insurrection" cases.

The liberal New Republic sees venality and "bottomless corruption" in the couple and speaks of Thomas's impeachment, but to the conservative Bulwark, Ginni Thomas is just a "silly woman with a powerful spouse" who everyone regards as "an idiot". 

Unfortunately, the US judicial code of ethics applies to all federal judges except the supreme court, whose individual  justices are the sole arbiters of whether they have conflicts of interest that merit their recusal from consideration of  matters before them. 

Chief Justice John Roberts seeks to protect the institutional integrity of the country's highest court, and he must be concerned that Thomas's failure to recuse will bring the politically-compromised court into new, ethical disrepute. 

Should Justice Thomas recuse himself from cases implicating events in which his wife may have played a part? The Chairman of the Senate Judiciary Committee certainly thinks so. 

From Roger Fitch and our friends down under...3.23.2022

 

Danger ahead

ROGER FITCH ESQ • MONDAY, MARCH 21, 2022

Bad news from SCOTUS ... Vaccines, climate and discrimination ... State secrets privilege applied in torture cases ... Partisan courts ... Forum shopping for flexible federal judges ... Political control of the state courts ... From Roger Fitch in Washington 

Bad decisions are flowing from the newly-stacked supreme court: notably, a decision overturning Occupational Health and Safety Administration regulations requiring employers to vaccinate employees. These unexceptional workplace regulations were blocked on grounds not found in the OSHA statute. American Prospect has more.

A case implicating climate change is now on the court's radar, threatening not only the EPA's authority to regulate, but the ability of Congress to delegate regulatory power to executive agencies. There's now a speculative Phantom Docket that reflexively questions administrative expertise. 

While undermining benign health regulations, the court may be contemplating new legal loopholes, e.g, a "homophobia exemption" from anti-discrimination law.

Sadly, the court backed the government in appeals supporting the "state secrets" privilege: CIA torture (Zubaydah's) and FBI surveillance (Muslim).  

An import from English law, the privilege was unknown in US law until 1953, when it was fabricated by the government and accepted by the supreme court. In US v Reynolds, the court found state secrets were an implied extension of executive privilege, another modern invention.

The Reynolds privilege afterwards proved to be falsely-claimed to conceal military negligence, yet the precedent remains, an absolute, unqualified rule of evidence. 

In Zubaydah, the government pleaded "state secrets" to block testimony by the psychologists James Mitchell and Bruce Jessen, in the Poles' investigation of the CIA facility in their country. The men were employed by the CIA to devise the torture program used against Zubaydah.

The CIA's Polish torture camp is no secret, and was described in the Senate Torture Report.  

Justices Sotomayor and Gorsuch vigorously dissented, with Gorsuch rightly characterising the state secret claim as seeking a judicial "rubber stamp" to avoid "further embarrassment for past misdeeds" of the government. 

Poland has already been forced to pay Zubaydah damages for collusion in his CIA detention and torture,  (so has Lithuania) and it's now following up with an investigation ordered by the European Court of Human Rights. The US signed the Hague Evidence Convention requiring cooperation.

President Obama also zealously pursued state secrets claims, even - to the surprise of many, including federal judges and the Times - those of George Bush. Curiously, the one legal proceeding where Obama did not plead state secrets was the one the ACLU brought against the very same psychologists whose evidence is sought by Zubaydah for the Polish inquiry.  

Absent a state secrets defence, the ACLU case proceeded to trial and was settled by Mitchell and Jessen, who had CIA indemnities. It's the only litigation where the CIA was forced to pay damages (indirectly) to victims.

The Biden administration has continued some distasteful Trump initiatives, e.g, the Assange extradition, the federal death penalty in the Boston Marathon case, and the Hambali military commission - perhaps cynically, to protect government prerogatives. 

Assange: extradition still on foot

*   *   *

Some lower courts now seem overtly partisan. On the fifth circuit, 12 of the 17 judges are Republican appointees (six by Trump), and the fifth contains Texas, where the initial judicial harm is most often inflicted. There, as elsewhere, Trump's trial judges are white-anting voting protections, and otherwise joining the movement to rewrite American history of the last 90 years - one of social innovation and legal adaptation - to replace it with the contentious narrative of a theocratic, culturally conservative country.  

18th century progress is also suspect. George Washington required troops to be vaccinated, and Thomas Jefferson spent years fighting smallpox anti-vaxxers; even so, after the supreme court overturned OSHA's mandate, a Texas district judge struck out the federal government's right to vaccinate its own employees. 

There's now open forum-shopping for flexible federal judges, especially in the Northern District of Texas, where Fort Worth's Reed O'Connor has staked a claim as one of the most shamelessly partisan (more here) Republicans on the federal district court bench. 

Jefferson: fought the smallpox anti-vaxxers

*   *   *

By imposing new burdens on voting while blessing gerrymanders, the supreme court endangers democracy itself. Readers will recall that in the 2019 Rucho case, the court ruled that partisan gerrymanders could not be challenged under the federal constitution, although Chief Justice Roberts noted that such gerrymanders could still be challenged in state courts.

The Democrats proceeded to use state courts, with some success, but now the US supreme court seems poised to handicap the opposition (as the Republican majority perceives Democrats) even further. The answer? The misbegotten Independent State Legislature theory.

The issue first came up in the Pennsylvania Supreme Court. In 2020, Pennsylvania's Republican legislature threatened to reverse uncongenial case law and hobble the independence of the (elected) justices through legislation to create individual judicial districts.

The theory was that gerrymandered justices would clear the way for gerrymandered congressional and legislative districts.

When that didn't work, and a reluctant supreme court was forced to rule on contested gerrymanders, the legislature cooked up something else: an "independent state legislature" theory that cites the federal constitution to claim a legislature's supremacy over its highest courts and constitution. Carried to its logical conclusion, legislatures could even overturn popular elections.

This appalling ploy has a chance of success before today's partisan US supreme court. Law dean Vikram David Amar has written at length on the astonishing  independent legislature construct, increasingly advanced by Republican legislatures in states with Democrat governors and/or supreme courts whose decisions - e.g, about the  legislature's unlawful gerrymandered districts - are found wanting.

Republicans already control the greatest share of the decennial redistricting, but they want more.

In an appeal to the US supreme court by Republican legislatures of Pennsylvania and North Carolina, more here, it's claimed that state supreme courts don't have the power to review a legislature's partisan gerrymanders, even in reliance on the state's own constitution.

The supreme court provisionally rejected this, in shadow docket orders in appeals by the Republican legislators in both those states where Republicans lack party-dominated supreme courts. Election law specialists fear it's only a temporary reprieve. 

Supreme Court: gives its blessing to gerrymanders

An appeal by Wisconsin's Republican-controlled state legislature is also on its way to the supreme court. In that state, the legislature enjoyed a one-justice majority on the supreme court but a Republican crossed the bench, so to speak, and supported the congressional districts adopted by the Democratic governor.

Outraged Republican members of congress from Wisconsin have now joined the fray. 

Ohio's Republican legislators also believed they controlled the state's supreme court, but the Republican CJ joined the Democrats in rejecting proposed districts. 

The districts challenged in Ohio and Michigan were drawn by independent Redistricting Commissions, but Ohio's supreme court has repeatedly found that state's commission-drawn districts to be biased. 

Kansas Republicans are meanwhile proposing constitutional amendments to avoid supreme court independence: abolish the current merit appointments, and require the disfavoured partisan selection. 

That should work. 

From Roger Fitch and our friends down under. 2-20.2022

 

Legitimate political discourse

ROGER FITCH ESQ • FRIDAY, FEBRUARY 18, 2022

Net closing, all too slowly, on Trump ... Deserted by accountants ... Flushing papers ... Destruction and obstruction ... Supreme Court odds-on the uphold racial gerrymanders ... Voting rights for the chopper ... Roger Fitch reports from Washington 

"Republicans always cave to Trump. And so it will be when it comes to the story of whether the riot was bad or good. It's just a matter of time." - Salon prediction, February 3, 2022. 

"WHEREAS, Representatives Cheney and Kinzinger are participating in a Democrat-led persecution of ordinary citizens engaged in legitimate political discourse, and [are]utilizing their past professed political affiliation to mask Democrat abuse of prosecutorial power for partisan purposes, … be it … RESOLVED, That the Republican National Committee … formally censures Representatives Liz Cheney of Wyoming and Adam Kinzinger of Illinois and shall immediately cease any and all support of them as members of the Republican Party ..." - Republican National Committee, February 4, 2022 

In the same week that Donald Trump proudly admitted his object was to overthrow the election, the RNC described January 6 as "legitimate political discourse", and censured the two Republicans on the house committee investigating it. 

It's seems extraordinary that the ex-president hasn't yet been charged with one or another of the many crimes he committed in office, e.g, those identified in the Mueller Report, many of which are approaching five-year limitations. 

The only thing sparing Trump from immediate federal charges seems to be over-caution at Main Justice, where the OLC and its opinions are yet to be "detrumpified"; anyone but Trump would already be facing federal charges. 

Even so, Trump is in peril. His bookkeepers have disowned their accounts, and New York State is closing in. His strategy remains to obstruct investigations until a new Republican house majority, or his own election in 2024, can quash federal hearings and criminal charges - but that won't help him in state courts.

Leaving aside the 14th amendment's exclusion of insurrectionists from federal office, Trump may have forfeited his office and become disqualified in future, under the Presidential Records Act, or under 18USC§2071 (Concealment, Mutilation or Removal of Official Records). DoJ has been asked to investigate. 

Unsurprisingly, with a classy guy like Trump, allegations include flushing papers down the presidential dunny. Ironically, Nixon's "White House plumbers" were pursued by the Watergate committee for their role in plugging leaks of classified information, but Trump's White House plumbers are real tradies who cleared drains blocked with such matter, and could be called to testify by the January 6 committee.

It's all consistent with Trump's lifetime habit of concealment and his aversion to creating or retaining incriminating documents. 

Among the purloined documents, retrieved from Mar-a-Lago after six months of negotiations, are some marked classified, and there are serious consequences for removing classified documents from the National Archives, as Bill Clinton's national security adviser, Sandy Berger, learned. 

A National Archives court filing has revealed which documents Donald Trump wants to hide: diaries, schedules, activity and call logs, draft speeches, and White House staffers' files. 

Documents taken from the White House for "safekeeping" at Mar-a-Lago

Trump's abduction and destruction of documents is also under investigation by the House Oversight Committee.

Memos recovered so far have been damning, according to the NY Times, which has finally begun to acknowledge Trump's seditious behaviour. 

Among the most incriminating are those concerning a scheme concocted by Trump's shady lawyers to steal the election with sham electors - what happened to "counselling crime" as grounds for disbarment? 

Trump also had a scheme to seize and impound voting machines, but couldn't decide which government department to subvert, so purported executive orders were drafted for both Homeland Security and DoD (DoJ was also considered). 

Now, these fake executive orders and election slates, some torn up by Trump and restored by his staff, are finding their way to the January 6 committee.

Other possible crimes are being uncovered as the January 6 investigation unfolds. It's been revealed that Donald Trump's bagmen gave $1 million to the piggy bank of his former chief of staff Mark Meadows who conveniently declined to proceed with his January 6 committee deposition. Witness interference?

Trump has also been dangling future pardons to those currently being tried for the January 6 break-in, should he succeed in becoming president again. In fact, Trump considered pardoning the Capitol break-in mob before he left office. 

Trump's obsession with pardons is well-known. Even so, members of the January 6 committee have indicated that dangling them amounts to witness tampering.

Believing he might as well be hanged for a sheep as a lamb, Trump has moved on to incitements to violence against prosecutors, who, he complains, are 

"... trying to put me in jail. The[y] are vicious, horrible people. They're racists and they're very sick…mentally sick. They're going after me without any protection of my rights by the supreme court or most other courts."

Why don't the prosecutors just get on with it, convene grand juries and indict him?

Here's the latest litigation tracker for all of the crimes and civil actions (some overseas) involving the man and his companies.

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Jackson: Supreme Court frontrunner

The new hard-right supreme court super-majority is settling in for years of political and judicial mischief. The Atlantic looked at supreme court history and the perils of a new court with an 1890s perspective. 

A court retirement by one of the remnant liberals has been announced; President Biden is about to fill the vacancy on the court created by the planned retirement of Justice Stephen Breyer, a centrist member of the Democrat-appointed minority. 

Biden has already announced the appointee will be one of several well-known African-American women serving on lower courts. The frontrunner is believed to be the highly-qualified Ketanji Brown Jackson, currently serving on the DC circuit.

Headed for the court are the decisions of state and federal judges striking down, as racial gerrymanders, the latest congressional redistricting by states. The supreme court responded by reinstating an egregious Alabama racial gerrymander.

In a demonstrably partisan election-year interference, a 5-4 majority of the court used its "shadow docket" to lift a stay unanimously granted by a special three-judge federal court. Now, challenged districts whose legality is yet to be decided may be implemented in this year's elections. 

Chief Justice John Roberts joined the liberals; perhaps he now regrets personally gutting the Voting Rights Act 1965  in the infamous 2013 decision, Shelby County v Holder, another Alabama case.

It's only one lost seat for the Democrats, but five Republican-appointed justices couldn't resist the opportunity to put their thumbs on the scale in an election year . 

Court observer Linda Greenhouse called it the moment the court "crossed the Rubicon" of partisan activism; the court is now on track to completely hollow out the VRA before the 2024 election. 

Caesar crosses the Rubicon in 49 BCE

As Steve Vladeck points out, Justice Kavanaugh and the more extreme justices can't wait for a full briefing and oral argument before rendering a decision changing the law. They plan to use stay order pretexts and the shadow docket to change it now. 

The disheartening result is Merrill v Milligan.