SCOTUS - The Good, The Bad, and The Ugly

[LFC]

Here's a story that pulls together this thread, the Sickness of Christian Politics thread, the Republican Assault on Democracy and March Towards Fascism thread, and I'm sure a few more. It's a f***ing trifecta. American Taliban, here we come.

Hmm Wonder Which Justices Would Possibly Do That?

Peggy Nienaber, an executive director at evangelical organization Liberty Counsel, was caught on a hot mic claiming that some justices “will pray with us, those that like us to pray with them,” and that “we’re the only people who do that.”

• Nienaber’s comments were made last week during a celebration evangelicals were holding in front of the Supreme Court over its dismantling of Roe v. Wade.

• Nienaber bragged that she and other evangelicals “actually go in there” for the prayer sessions, not at her office or at the justices’ homes.

• One of Nienaber’s prayer sessions with the justices happened the Monday after SCOTUS struck down Roe, the evangelical leader said.

• Not only does Liberty Counsel frequently bring cases in front of SCOTUS, the conservative justices actually cited its amicus brief while striking down Roe. Which is probably why Nienaber insisted that her comments be “totally off the record.” Oops.

• Nienaber didn’t identify the justices by name, but Rolling Stone noted that she’s taken pictures with Justices Brett Kavanaugh and Clarence Thomas. She also referred to Thomas as a “friend” and praised the conservative justice for “passing by our ministry center to attend church and always taking time to say hello” in a Facebook post, according to Rolling Stone.

[LFC]

With Alito signaling and Thomas blaring that they'll back this Christian zealot shit this is how they're going to attack contraception rights. The gist is that they simply redefine pregnancy as fertilization. Easy peasy!

The demise of Roe threatens access to emergency contraception, IUDs and even the birth-control pill. Access is threatened even if Griswold v. Connecticut, which safeguards our right to birth control, remains the law.

By refusing to recognize a right to abortion at any stage of a pregnancy, the rightwing supermajority on the Supreme Court has created a free-for-all.

State legislators can disregard medical consensus and redefine pregnancy and abortion according to whim. Effective female-controlled methods of birth control could be banned even without overturning Griswold.

Five states already prohibit abortion from conception onward. These states have decrees that pregnancy begins at the moment of fertilization.

However dramatic a sperm’s entrance may be, fertilization does not guarantee a pregnancy. Medically speaking, pregnancy begins at implantation. Half of fertilized eggs fail without birth control. That means unprotected sex dooms more fertilized eggs than any birth control does

In any case, preventing a fertilized egg from implanting is contraception, not abortion. Even the notorious Hyde Amendment allows the federal government to fund contraceptives that prevent implantation.

State legislators will probably get away with their capricious redefining of key medical concepts like “pregnancy” and “abortion,” because the Supreme Court usually defers to their views on socially contested concepts.

[jackd]

Maybe they'll require males to act on whatever sexual impulse arises (so to speak); life begins with the gleam in his eye?

[goldenvalley]

Jul 7, 2022 22:08:22 GMT jackd said:

Maybe they'll require males to act on whatever sexual impulse arises (so to speak); life begins with the gleam in his eye?

Every sperm is sacred.

[pnwguy]

Jul 7, 2022 23:15:14 GMT goldenvalley said:

Jul 7, 2022 22:08:22 GMT jackd said:

Maybe they'll require males to act on whatever sexual impulse arises (so to speak); life begins with the gleam in his eye?

Every sperm is sacred.

[LFC]

If you're going to be blatantly political, expect to be treated like a blatant politician. I feel bad for the manager of the restaurant, though. That's a tough situation to be put into.

Morton’s Steakhouse in D.C. huffed about “unruly” protesters disrespecting the right “to eat dinner” after Supreme Court Justice Brett Kavanaugh had to be whisked out a back door of the upmarket restaurant on Wednesday evening. According to Politico, protesters enraged at Kavanaugh’s role in overturning Roe v. Wade gathered out the front of the eatery and called the manager to demand Kavanaugh be denied service. Kavanaugh “and all of our other patrons at the restaurant were unduly harassed by unruly protestors while eating dinner,” the restaurant shot back. “Politics, regardless of your side or views, should not trample the freedom at play of the right to congregate and eat dinner. There is a time and place for everything. Disturbing the dinner of all of our customers was an act of selfishness and void of decency.”

[jackd]

I agree with the manager. Harassing Kavanaugh at dinner or Thomas at his home is, in my opinion, out of line.

[LFC]

Jul 8, 2022 17:24:09 GMT jackd said:

I agree with the manager. Harassing Kavanaugh at dinner or Thomas at his home is, in my opinion, out of line.

I agree but if other people start adopting the MAGA tactics this will look like a nothing burger. The next big step is to show up at his home while openly carrying firearms and threatening his family. Maybe trying to get into his door. Maybe even a "citizens' arrest." That's what the MAGAts, especially the militia types, have been pushing and I'm afraid it's going to become standard fare at which point the next escalation will be to actually use those firearms. Our country is seriously f***ed.

[LFC]

There's been lots of whining and wringing of hands that the Democrats never passed a law to safeguard abortion. Josh Marshall makes the case I firmly believe. Right-wing partisan hack SCOTUS is so corrupt it wouldn't matter a bit. This is a result oriented court now and precedent is a joke to them. They'd find the justification to strike it down no matter what. Anybody who thinks otherwise is living in a fantasy world. (paywalled)

Purely a Political Battle, Not a Legal One

This covers some ground we’ve discussed already. But I wanted to come at it from a slightly different angle. The following is a note from a law professor TPM Reader whose initials I’m omitting because it’s a small world. I’ll call them LP …

Codifying Roe is not so easy. Congress has only the legislative power explicitly provided in the constitution. In the ACA case, the Court (per CJ Roberts) decided that “health care and insurance” was outside the domain of the commerce clause. And perhaps that’s a good thing, because it’s something of a safeguard against a national anti-abortion law. So what about the enabling clauses of the 14th Amendment (sec 5) and the 13th Amendment (sec. 2). The Court has cut back Congress’ power to use sec 5 to “expand” rights. So you’ve made a point of pushing Biden on “give me 2 more Senators and we’ll run over the filibuster to codify Roe,” I think TPM should do some reporting on what “codifying” would mean and whether it’s practicable with this Court, without something like the ERA. And so maybe you ought to be pushing Biden on “give me 2 more Senators and we’ll enlarge the Court.”

I told LP that I’d tried to address just these concerns — their legal and political dimensions — in this post from a couple days ago. I do address these points there. But I flag this email not to say, Oh LP just doesn’t get it. They’re making very good points within the bounds of the law as currently defined by the Roberts’ Court. As I told LP, I don’t see the restrictions on the commerce clause as providing any protections against a national abortion ban because I see this Court as fundamentally illegitimate and corrupt. They will happily find a path to make sure a policy outcome they support passes constitutional muster.

But the broader point here is this. We simply should not accept that we should or can operate within the law as defined by this corrupted Court. I do not accept that there is anything in the Constitution that prevents the Congress passing a law guaranteeing a right to an abortion and other reproductive services nationwide. I do think that on the first go — a Roe law passed in January 2023 — it should be drafted in such a way as to make it as hard as possible for the Court to tamper with it. But that’s only put forward as the shortest term tactical consideration. To the extent the Court says this isn’t allowed — by whatever reason or rationale — we should see that as a political obstacle to be addressed by political means. The most obvious is restriction of appellate jurisdiction, adding members to the Court etc. These are both clearly and explicitly stated powers of Congress about which there can be no question. And as I argued in that earlier post, the clearest, best and perhaps only path to building the political will and support to take those steps is to pass such a law and dare the Court to put its corruption and minoritarian pretensions on the most vivid of displays.

[jackd]

But first, we need the votes. Nothing can happen without them.

[goldenvalley]

Jul 8, 2022 17:51:26 GMT LFC said:

There's been lots of whining and wringing of hands that the Democrats never passed a law to safeguard abortion. Josh Marshall makes the case I firmly believe. Right-wing partisan hack SCOTUS is so corrupt it wouldn't matter a bit. This is a result oriented court now and precedent is a joke to them. They'd find the justification to strike it down no matter what. Anybody who thinks otherwise is living in a fantasy world. (paywalled)

Purely a Political Battle, Not a Legal One

This covers some ground we’ve discussed already. But I wanted to come at it from a slightly different angle. The following is a note from a law professor TPM Reader whose initials I’m omitting because it’s a small world. I’ll call them LP …


I told LP that I’d tried to address just these concerns — their legal and political dimensions — in this post from a couple days ago. I do address these points there. But I flag this email not to say, Oh LP just doesn’t get it. They’re making very good points within the bounds of the law as currently defined by the Roberts’ Court. As I told LP, I don’t see the restrictions on the commerce clause as providing any protections against a national abortion ban because I see this Court as fundamentally illegitimate and corrupt. They will happily find a path to make sure a policy outcome they support passes constitutional muster.

But the broader point here is this. We simply should not accept that we should or can operate within the law as defined by this corrupted Court. I do not accept that there is anything in the Constitution that prevents the Congress passing a law guaranteeing a right to an abortion and other reproductive services nationwide. I do think that on the first go — a Roe law passed in January 2023 — it should be drafted in such a way as to make it as hard as possible for the Court to tamper with it. But that’s only put forward as the shortest term tactical consideration. To the extent the Court says this isn’t allowed — by whatever reason or rationale — we should see that as a political obstacle to be addressed by political means. The most obvious is restriction of appellate jurisdiction, adding members to the Court etc. These are both clearly and explicitly stated powers of Congress about which there can be no question. And as I argued in that earlier post, the clearest, best and perhaps only path to building the political will and support to take those steps is to pass such a law and dare the Court to put its corruption and minoritarian pretensions on the most vivid of displays.

I've always felt that sometime in the late '80's when there became more clear linkage between Moral Majority types and the Republican Party federal legislation should have been passed.  One barrier is that abortion related things are girl things and icky to deal with.  Then we got to the '90's when Casey v Planned Parenthood was decided and everyone should have seen that the game plan was to chip away at abortion as much as possible.  Still no federal legislation.   Now, as jack points out, it's down to a state by state battle...a ridiculous proposition for a fundamental right to bodily autonomy.

[LFC]

More on our utterly corrupt, partisan hack SCOTUS. This TPM piece focuses on the the difficulty many in the legal profession are having in accepting that SCOTUS has become completely political, not just influenced by each justices politics but usually adhering to the Constitution and precedents.

So, for instance, TPM Reader SB wrote saying he entirely agrees with the need to codify Roe and if necessary take further steps to constrain the Court if they then strike down such a codification. But then he added this.

However, I don’t believe laypeople really understand what a a heavy, heavy emotional lift it is for the vast majority of attorneys generally, and law professors in particular. The belief that we are serving the rule of law and that that while decisions will always be shaped by human weakness, judges can and will render rulings contrary to their ideological predilections if the law requires it is central to our identity. it is what makes more than the lawyer jokes say we are. It is the essence of the constitutional principle of due process, equal protection, Magna Carta law of the land. All that stuff. It’s hard to accept that it’s dead and courts are just political actors, even as right wing billionaires have plowed fortunes into making state and federal courts exactly that.
I have had this conversation with many attorneys who are not political maniacs like I am. I find few who are not struggling with acceptance because, make no mistake, acceptance is to accept existential crisis, accept the need, at best, to completely redefine who we are and how we do it. In a real sense, most of us are grieving for due process and rule of law like people grieving a death where no body has been found. We know it emotionally, but don’t accept it intellectually or accept it intellectually, but not emotionally.

TPM Reader SD wrote in with similar agreement and then wrote this.

Something that has always been unthinkable to many of us in the legal community, has now become not just thinkable, but undeniable — and that is the recognition that defending our democracy and defending the legitimacy of the Supreme Court are no longer compatible. You can’t be on the side of the virus and the cure at the same time. I may not like it, but it’s still obvious that proving to as much of the public as possible the complete lack of legitimacy in the Court while it’s dominated by its far right core has become a necessary step to any cure. In the past, I have consistently defended the judiciary and more broadly the concept of judicial independence. But given the choice between defending the Supreme Court and defending our democracy, it isn’t a close call.

The legitimacy and power of the Court rests on the public’s belief that it is making a good faith effort to wrestle with the numerous questions arising from the Constitution, governmental actions and the law-making process. This will always involve some bias, difference of opinion, contending ideological perspectives. But what we have seen in this last decade and like a dam giving way in this just-concluded term is something specific and different. It is a Court operating expansively, routinely overruling the actions of the other branches not according to any coherent set of principles but to advance the ideological and, increasingly, the nakedly partisan goals of the Republican Party. Indeed, it is a Court routinely overruling or tossing aside its own previous decisions or – perhaps even more telling – simply ignoring them for their situational inconvenience. When the plain text of the Constitution fits the bill, it gets the call. When a new doctrine is needed, it gets manufactured and sent on to the field. The Roberts Court – or perhaps one should now say the Alito Court – is originalist on the streets but activist in the sheets.

This corruption has been the centerpiece not only of the Roberts Court but his individual role on the Court. He has fought what has amounted a rearguard action, seeking the same goals but fearful of acting so nakedly or corruptly as to trigger a backlash that would endanger not so much the power of the Court but the goals of the project of which he is very much a part. Over time he has lost that battle – the drama that was playing out in that leaked Dobbs draft in the Spring.

In recent years it has become a commonplace assumption really across the political spectrum that the Court will try to block or restrain any action by a Democratic President or Congress. The only question is what angle it will find convenient to meet the purpose. We’ve learned a common pattern in which a constitutional challenge once viewed as unprecedented bordering on absurd emerges as new constitutional law two or three years later. This is all the definition of an out of control Court operating beyond its authority. The process by which it arrived at this point is one of a deep and profound corruption. It is hardly an attack on the rule of law or judicial independence to seek to restrain those who have so successively corrupted each. The signature of what we should now call the Thomas-Alito Court is that its six to three majority – founded on corrupt actions – has freed it from any feeling of constraint. It’s power is absolute. They can do and are doing whatever they want and appear to believe there is no available check on their power.

[LFC]

TDB's pet conservative, Matt Lewis, is outrage that Kavanaugh was protested but apparently completely missed Pete Buttigieg's description of being harassed in the same manner multiple times. A quick search of TDB also turned up zero outrage by this author over poll workers and election officials being not just protested by actually threatened, along with their families, at home. But Kavanaugh getting protested at a restaurant where he didn't even engage with the protesters? Well THAT crosses the line! Welcome to the wonderful world of double standards. Republicans are masters of it.

Should public officials—even the ones you really don’t like—be allowed to have a moment’s peace in their personal lives?

During his appearance on Fox News Sunday this past weekend, Transportation Secretary Pete Buttigieg dismissed concerns over people protesting Supreme Court Justice Brett Kavanaugh from outside of Morton’s steakhouse in Washington, D.C., last week.

By Buttigieg’s telling, this was no big deal. Just normal citizens who want to “exercise their First Amendment rights.”

Here's the part Lewis missed (or more likely intentionally ignored):

"Protesting peacefully outside in a public space? Sure. Look, I can't even tell you the number of spaces, venues and scenarios where I've been protested. And the bottom line is this. Any public figure should always -- always -- be free from violence, intimidation and harassment. But should never be free from criticism or people exercising their First Amendment rights."

[goldenvalley]

Jul 12, 2022 16:17:52 GMT LFC said:

TDB's pet conservative, Matt Lewis, is outrage that Kavanaugh was protested but apparently completely missed Pete Buttigieg's description of being harassed in the same manner multiple times. A quick search of TDB also turned up zero outrage by this author over poll workers and election officials being not just protested by actually threatened, along with their families, at home. But Kavanaugh getting protested at a restaurant where he didn't even engage with the protesters? Well THAT crosses the line! Welcome to the wonderful world of double standards. Republicans are masters of it.

Should public officials—even the ones you really don’t like—be allowed to have a moment’s peace in their personal lives?

During his appearance on Fox News Sunday this past weekend, Transportation Secretary Pete Buttigieg dismissed concerns over people protesting Supreme Court Justice Brett Kavanaugh from outside of Morton’s steakhouse in Washington, D.C., last week.

By Buttigieg’s telling, this was no big deal. Just normal citizens who want to “exercise their First Amendment rights.”

Here's the part Lewis missed (or more likely intentionally ignored):

"Protesting peacefully outside in a public space? Sure. Look, I can't even tell you the number of spaces, venues and scenarios where I've been protested. And the bottom line is this. Any public figure should always -- always -- be free from violence, intimidation and harassment. But should never be free from criticism or people exercising their First Amendment rights."

Hmm compare Kavanaugh's situation to that of a person seeking an abortion having to run a gauntlet of protests outside of the clinic. 

[LFC]

Jul 12, 2022 17:30:00 GMT goldenvalley said:

Hmm compare Kavanaugh's situation to that of a person seeking an abortion having to run a gauntlet of protests outside of the clinic. 

How dare you compare the sanctity of the privacy of a good, God(tm) fearing Christian judge to that of some slut who wants to murder her baby? (Yeah, you know millions of them are thinking it.)

[LFC]

Another letter from a TPM reader with a strong legal background. In full due to paywall, bold mine. Force partisan hack SCOTUS to make unpopular and ridiculously argued decisions over and over. Demonize them as the activists they are, with no regard for the Constitution, precedent, actual history, or even basic facts. (Wow, they really are a perfect encapsulation of the current Republican Party.)

I want you to read this TPM Reader email. If you care about Roe, Dobbs or what seems like the White House’s response just not up to the challenge of the moment, you should really read this. It’s not exculpatory. But it explains the nature of the breakdown, the outdated model they appear to be stuck in. I won’t be identifying the TPM Reader, even by initials. Suffice it to say TPM Reader TL, as I’ll call them, has longtime professional experience that allows them to give this perspective and render these judgments.

Yesterday afternoon, you retweeted the Politico story on the White House lawyers’ conservative approach to post-Dobbs fixes saying “If this is true it shows a total misunderstanding of the current political moment.”

That is exactly the problem.

For decades, lawyers for the Executive Branch, in both DoJ and the White House, have urged their “clients”—agencies and the President—not to be overly aggressive in exercising their authority for fear that agency action would be invalidated in court.

There were very good reasons for this caution. Government lawyers wanted to be in a strong position when defending their clients and feared that they would have less credibility in critically-important cases if forced to defend close-to or over-the-line administrative actions. In other words, the (likely accurate at the time) belief was that if government lawyers were not forced to defend marginal exercises of federal power, they were more likely to win when it really counted—when key federal government prerogatives were on the line. Or at least they would win in the non-marginal cases.

In addition, losing in court was generally perceived to be a black mark for an agency or department. A referee presumed to be neutral had concluded government had abused its authority.

Government lawyers haven’t recognized, or don’t want to recognize, that their world has fundamentally changed.

Today’s federal courts are highly skeptical of everything the federal government does, or tries to do—including actions that ten or twenty years ago would have easily been upheld in court. And they have imposed, and are imposing, new and much more restrictive constraints on agency authority. Finally, does anyone believe that caution by Biden Administration lawyers will give them more credibility, and a better chance to win, when they go before today’s courts?

In other words, is the old approach the right one for this very different judicial landscape? There is a strong argument that it is not.

To begin with, continuing to apply the “don’t do it if we are likely to get sued and might lose” standard drastically limits the scope of permissible government action. Every action that moves the needle more than a tiny bit in the progressive direction is going to be met with a lawsuit. And that lawsuit likely will be filed in a judicial district populated by conservative judges. And those conservative judges are likely to rule against the Biden Administration. So losing is a strong possibility in virtually every single case.

But much more importantly, applying the old standard lets the courts avoid public accountability for their new, dramatically more constraining, constitutional and statutory construction standards.

If a federal agency acts, but a court holds the action unlawful by applying those new restrictive standards, that opens the door to a public conversation about an activist judiciary. But if the agency never acts, or takes only ineffective half-measures, it is the agency, and the President, who are attacked for failing to address a problem effectively. The courts get a complete pass, even though their new standards are the reason that the government couldn’t take appropriate action.

In today’s post-Dobbs world, moreover, it is at least questionable whether the public would perceive judicial invalidation of government action as a black eye for the Executive Branch rather than yet another example of newly-muscular conservative court majorities changing the legal rules.

But there is that tradition of government lawyers’ caution when it comes to actions that will generate lawsuits.

The key question, therefore, is whether those lawyers—and more importantly their clients, the policymakers responsible for delivering results to the American people—will step back and reassess that tradition and decide whether it fits the dramatically changed judicial environment that the Administration now faces.

That is partially a legal question, but it’s not clear that the old standard is providing much legal benefit in this very different legal environment. So it is much more a policy and political question: which approach best shows the American people why the federal government is unable to address the nation’s problems effectively? Isn’t our key dysfunction the toxic combination of congressional paralysis and judicial aggressiveness. Don’t Americans deserve—and shouldn’t progressives want—to shine a bright spotlight on that reality?

[LFC]

Here's an excellent piece at Vox on how partisan hack SCOTUS simply ignores everything an anything that constrains its power, including (when convenient) actual laws and actual constitutional text. You may know much of it already but the details provided and gathering of multiple cases in one article truly display the magnitude of those ushering in a new America ruled by Republican fascism.

The highest Court in the most powerful nation in the world appears to have decided that it only needs to follow the law when it feels like it.

Last December, for example, the Supreme Court handed down a decision that fundamentally alters the Union — giving states sweeping authority to restrict their residents’ constitutional rights.

At least, that’s what happened if you take the Court’s 5-4 decision in Whole Woman’s Health v. Jackson seriously. Jackson involved Texas’s anti-abortion law SB 8, which allowed “any person” who is not employed by the state to sue anyone they suspect of performing an abortion after the sixth week of pregnancy, and to collect a bounty of at least $10,000 from that abortion provider. The Court allowed that law to take effect, even though abortion was still considered a constitutional right at the time.

If you apply the logic from Jackson more broadly, any state could pass a law unleashing such litigious bounty hunters upon people who exercise any constitutional right. Perhaps a state wants to make it illegal to own a gun, or maybe it wants to allow bounty hunters to sue any Black family that sends its child to a predominantly white school — and the federal judiciary will simply stand back and let it happen. Realistically, the Court is unlikely to allow these sorts of attacks. But to spite abortion, the conservative majority was willing to open the door to them.

Jackson, moreover, was only the beginning of a Rumspringa of conservative excess led by the Court’s Republican-appointed majority.

In its just-completed term, the Supreme Court overruled Roe v. Wade, permitting states to ban abortions without having to resort to SB 8-style chicanery. It also overruled a seminal 1971 decision prohibiting the government from advancing one religious belief at the expense of others. It all but neutralized another half-century-old precedent permitting federal law enforcement officers who violate the Constitution to be sued. And the Court’s Republican majority dismantled two decisions protecting criminal defendants who were convicted or sentenced without adequate defense counsel, most likely condemning an innocent man to die in the process.

The Court endangered huge swaths of long-existing gun laws, striking down a New York state law that has been on the books for 109 years. And it did so in an opinion that simultaneously fetishizes the “Second Amendment’s plain text,” while ignoring the first thirteen words of that amendment.

The same Court that attacked Roe as “remarkably loose in its treatment of the constitutional text” saw no problem with ignoring half of the text of the Second Amendment.

In what may be the most consequential environmental case in decades, the Court relied on something called the “major questions doctrine” — a fairly new legal doctrine that is never mentioned in the Constitution or in any statute and that was invented entirely by judges — to strip the Environmental Protection Agency of much of its authority to fight climate change.

The Court even abandoned any pretense that it must be honest about the facts of the cases it decides, claiming that a public school football coach who ostentatiously prayed on the 50-yard line after games — while surrounded by players, spectators, and members of the press — was merely engaged in a “short, private, personal prayer.”

It was a singularly alarming Supreme Court term. The Court didn’t simply abandon longstanding legal rules, at times it seemed to abandon the rule of law altogether.

[LFC]

Jul 12, 2022 16:17:52 GMT LFC said:

TDB's pet conservative, Matt Lewis, is outrage that Kavanaugh was protested but apparently completely missed Pete Buttigieg's description of being harassed in the same manner multiple times. A quick search of TDB also turned up zero outrage by this author over poll workers and election officials being not just protested by actually threatened, along with their families, at home. But Kavanaugh getting protested at a restaurant where he didn't even engage with the protesters? Well THAT crosses the line! Welcome to the wonderful world of double standards. Republicans are masters of it.

Should I check TDB tomorrow to see if Matt Lewis covers this story?

A Seattle man will be charged with a hate crime after repeatedly harassing Rep. Pramila Jayapal (D-WA) at her home.

The 48-year-old man, whose name was redacted on the police report, drove past the Washington Democrat's home at least three times late Saturday shouting profanities and threatening to kill her if she did not "go back to India," reported the Seattle Times.

Police found the man standing in the middle of the street just before 11:30 p.m. with his hands in the air and a .40-caliber handgun holstered on his waist, after Jayapal told 911 dispatchers her husband believed someone may have fired a pellet gun toward their house.

[LFC]

Josh Marshall makes the case that even if Democrats think they'll lose a case in front of a corrupt Republican court they need to push them anyway. As he says, and I agree, Dems can't look weak because they won't fight. Instead they need to made the Republicans own their corrupt judges' rulings. They can't just wait for their corruption to appear when right-wingers push cases.

Understanding the Reality of a Renegade High Court

[LFC]

Wait, what? This is insane!

Are federal law enforcement officers under the command and control of elected officials, or are they free to enforce the law as they choose, targeting the people they want to target, without guidance from an elected leader?

That’s the fundamental question in United States v. Texas, a case that just arrived at the Supreme Court on its “shadow docket.” It asks whether the Biden administration can instruct federal Immigration and Customs Enforcement (ICE) agents to follow certain enforcement priorities when deciding which undocumented immigrants to apprehend and remove from the country.

Anyone with even a passing familiarity with federal immigration law will be baffled that this issue required litigation, much less that it needs to be resolved by the Supreme Court. Federal law provides that the secretary of Homeland Security “shall be responsible” for “establishing national immigration enforcement policies and priorities.” Thus, immigration enforcement agencies such as ICE are under the control of a senior political official who is responsible to an elected president.

Pursuant to this authority, Secretary Alejandro Mayorkas issued a memo to ICE’s acting director last September, informing him that the agency should prioritize its enforcement efforts against undocumented or otherwise removable immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”

Not long after Mayorkas issued this memo, however, the Republican attorneys general of Texas and Louisiana went to Drew Tipton, a Trump judge known for handing down legally dubious decisions blocking the Biden administration’s immigration policies, asking Tipton to declare Mayorkas’s memo unlawful. Tipton obliged, and his decision was embraced by an especially right-wing panel of the United States Court of Appeals for the Fifth Circuit.

Now, the Biden administration is asking the Supreme Court to stay Tipton’s decision, temporarily restoring an elected administration’s control over federal law enforcement while this case proceeds.

[LFC]

Josh Marshall lays out where SCOTUS is working towards. It's Republican Nirvana where they get to do almost anything they wish in their own states, including crushing the majority of voters so they can maintain power.

It’s no secret that a renegade Court that overturned Roe is likely to manufacture a new set of originalist principles that says any Roe law is unconstitutional — more corrupt fruit of the corrupt tree. But it’s interesting to see this all laid out in so many words. This morning I was looking at the morning RCP newsletter and noticed this article by Frank Miele on this topic. Miele explains that the constitution is very clear on allowing the federal government to do just a few things — make treaties, mint currency, raise armies and a few others; and that’s it.

And yet somehow now the Congress of the United States has the power to establish a massive bureaucracy to sell and regulate health insurance, control pollution, intimidate business, spend billions of dollars on something called COVID relief, send billions more dollars to Ukraine and other nations around the world, and of course if Democrats have their way, assume total and complete control over how elections are run. These are just a few examples of an out-of-control Congress that hasn’t obeyed the limitations of the Constitution for well over a hundred years, probably more.

And there we have it.

Cranks, gold bugs, hyper-libertarians and various other misfits have been around forever. A few years ago we could have set this aside as just obscure ranting. But the reality is that someone like this does speak for at least four members of the current Court and on many fronts as many as six. So we’re not allowed to legislate about abortion now. And well, it turns out the entire 20th century state is on the chopping block too.

And here we are.

[pnwguy]

Jul 19, 2022 21:38:27 GMT LFC said:

Josh Marshall lays out where SCOTUS is working towards. It's Republican Nirvana where they get to do almost anything they wish in their own states, including crushing the majority of voters so they can maintain power.

The way they see it, only white male landowners were REAL citizens, so they are just trying to return to the nation's founding ideals.  It was those ungrateful slaves and women who keep messing things up.

[AnBr]

Jul 19, 2022 23:15:17 GMT pnwguy said:

It was those ungrateful slaves and women who keep messing things up.

And immigrants.

[jackd]

Yeah; they wanted white men's stuff.

[andydp]

Jul 21, 2022 21:23:57 GMT jackd said:

Yeah; they wanted white men's stuff.

"Where the white women at ?"  Sheriff Bart, Blazing Saddles