Justice Amy Coney Barrett officially sworn in to the Supreme Court, giving conservatives a 6-3 majority.

 

LETTERS FROM AN AMERICAN

onight, the Senate confirmed Justice Amy Coney Barrett to the Supreme Court of the United States to take the seat of the late Justice Ruth Bader Ginsburg. The vote was 52 to 48, with no Democrats voting to confirm Barrett. One Republican, Senator Susan Collins of Maine, voted against the confirmation, saying it is too close to an election to fill the seat. Collins is in a tight reelection race against Democrat Sara Gideon, and since Majority Leader Mitch McConnell did not need Collins’s vote, she could vote no on procedural grounds and hope to push fewer voters to Gideon.

Barrett is an originalist, and will cement a 6-3 majority of justices eager to unwind the judicial decisions of the past seventy years that protect civil rights, business regulation, and a social safety net. Today is former Secretary of State Hillary Clinton’s birthday, and as soon as the vote went through, the Twitter account for the Republicans on the House Judiciary Committee tweeted: “Amy Coney Barrett, confirmed. Happy Birthday, [Hillary Clinton]!”

McConnell promptly adjourned the Senate until November 9 without taking up a coronavirus relief bill.

An hour later, Trump held a public ceremony for Barrett at the White House, in an echo of the coronavirus super spreader event on September 26 at which he announced her nomination. The ceremony seemed designed to demonstrate that he rejects scientific recommendations about the virus. Barrett took the constitutional oath, administered by Justice Clarence Thomas, on the South Lawn of the White House. (Chief Justice John Roberts will administer the second oath she must take, the judicial oath, on Tuesday in a private ceremony at the court.) Trump congratulated her in a short speech.

Shortly after the ceremony, Trump released a video of the event with Barrett walking alongside him through the doors of the White House onto a balcony where the two stood for the crowd. It was a triumphant demonstration of Trump’s power, and undermined the illusion that Barrett will be a nonpartisan judge. Traditionally in America, Supreme Court justices keep a distance from political leaders, yet she has just appeared in a campaign commercial for the president.

The significance of Barrett’s elevation to the court showed just minutes before the Senate confirmed her, when the Supreme Court ruled 5-3 for Wisconsin Republicans who want to block the counting of votes postmarked before Election Day but received up to six days after it. Democrats and civil rights groups wanted the extension because of the pandemic. For this year’s primary in Wisconsin, 80,000 ballots postmarked in time arrived after the election were counted; for the election, such late ballots will be rejected. The court’s decision follows originalist ideology: it says states get to run elections however its legislators wish. That principle trumps the right to vote.

That seemingly principled stand in favor of local democracy hides the reality of one-party rule. Wisconsin has been so thoroughly gerrymandered that although Democrats actually won a majority in state elections in 2018, Republicans hold 63 of the 99 seats in the legislature. It is virtually impossible for Democrats to win control of the state and thus the Republican legislature will get to decide who votes. We have seen such political dominance before… just ask any Black or Brown American.

In a footnote, Justice Kavanaugh went further to argue that states need to avoid “the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of the election. And those States also want to be able to definitely announce the results of the election on election night, or as soon as possible thereafter.” This is the argument Trump has been making to delegitimize mail-in ballots, and it is political, not judicial. Absentee ballots do not “flip” an election; they are a legitimate part of an election that cannot be decided until they are counted. And the idea of calling an election on the night it is held is a tic of the media. In fact, no state certifies its election results the day of the election. Some take weeks.

So what we have tonight is the Republican Party under Trump ramming through a third Supreme Court justice who is far out of sync with the vast majority of the American people, an authoritarian ceremony for an election ad, and a sign that partisans are working to steal the upcoming election.

This is not a sign of strength—it is a sign of weakness. Trump’s Republicans have gotten a reliable majority on the Supreme Court—for now—but they have delegitimized the Senate and the Supreme Court. It is the desperate act of a party that is so far out of favor with the American people it has given up winning elections fairly and is resorting to the tactics of strongmen. That McConnell pushed this confirmation through right before the election, rather than holding the seat open to fire up evangelicals as he did in 2016, suggests he thinks that even evangelicals cannot save the White House this time around.

The administration is sinking in bad news. It has given up on combatting the coronavirus, which infected 74,323 more Americans today and killed at least 534. Reflecting that the rising infection numbers mean a slower economic recovery, the stock market today had its biggest drop in a month. Financiers are so tired of Trump’s volatility, including his tweets, that they are pouring five times more money behind Biden. Meanwhile, White House chief of staff Mark Meadows, who admitted the coronavirus policy on Sunday, is so hated that 18 administration officials talked to Josh Dawsey of the Washington Post about him; one White House advisor said “It’s hard to count the ways Meadows has failed as a chief of staff…. It’s been an unmitigated disaster.”

Donald Jr., and Mark Meadows.

A Trump appointee who chaired the Federal Salary Council overseeing federal pay resigned today in protest over Trump’s recent Executive Order enabling him to fire key federal workers. “[T]he Executive Order is nothing more than a smokescreen for what is clearly an attempt to require the political loyalty of those who advise the President, or failing that, to enable their removal with little if any due process,” Ron Sanders wrote, “As a matter of conscience, I can no longer serve him or his administration.”

And staffers at the Department of Health and Human Services are openly looking for other jobs. Three of them told Politico’s Dan Diamond that they are voting for Joe Biden. "I've never voted for a Democrat for president, but Biden hit the sweet spot. I know he's not too far left and he understands how to make government work," one said. "And I know he'll never make fun of [Anthony] Fauci in public.”

Biden’s campaign, run quietly and steadily, has picked up steam until he is ahead in the polls by about 9 or 10 points nationally, and there is no sign that Trump is closing that gap. Clearly, the president had hoped the malarkey about the Hunter Biden laptop story—which we learned today White House lawyers tried to pitch to the Wall Street Journal before Rudy Giuliani took it to the New York Post-- would create the same stampede from Biden that the email laptop story caused from Clinton in 2016, but that stampede has not materialized.

On Sunday, nine days before the election, about 58.6 million Americans had already voted early, more than the total number who voted early or by mail in 2016. Registered Democrats have made up 51% of those votes, while registered Republicans have made up 31%, leading Trump officials to attack the legitimacy of mail-in ballots and to insist that “the huge majority of President Trump’s supporters” were planning to vote on Election Day. But Black Americans, the heart of the Democratic Party, are turning out in huge numbers. “This election is for saving the U.S.” business consultant Dave Richards told CNN’s Faith Karimi.

People like Biden. They think he’s a decent man, who cares about someone other than himself. He has plenty of that old word, fallen into disuse in the last four years: character. He has principles, honor, a work ethic, and he treats people with respect—attributes we should demand in our officials. He has provided detailed plans about how he would address the country’s problems: systemic racism, economic inequality, and coronavirus, among others. At the same time, he offers a positive vision of America, a welcome contrast to Trump’s dark vision of American carnage. Biden constantly repeats that there is nothing Americans can’t do if we do it together.

And that, right there, is why the Republicans needed to pack the Supreme Court.

—

Notes:

Wisconsin:

Steven Mazie @stevenmazie

BREAKING: Supreme Court sides with Republicans to block voting accommodations in Wisconsin. The vote is 5-3.

October 26th 2020

1,543 Retweets2,355 Likes

Ari Berman @AriBerman

Minutes before Amy Coney Barrett is confirmed Supreme Court rules 5-3 to throw out ballots in Wisconsin that are postmarked by Election Day but arrive after. 80,000 ballots were counted in primary that arrived after Election Day but were postmarked by then

Steven Mazie @stevenmazie

BREAKING: Supreme Court sides with Republicans to block voting accommodations in Wisconsin. The vote is 5-3.

October 26th 2020

8,161 Retweets12,286 Likes

https://www.washingtonpost.com/politics/courts_law/supreme-court-wisconsin-mail-ballots/2020/10/26/70fa459e-12fc-11eb-ad6f-36c93e6e94fb_story.html

https://www.brennancenter.org/our-work/analysis-opinion/gerrymandering-meets-coronavirus-wisconsin

https://www.washingtonpost.com/politics/courts_law/senate-court-barrett-trump/2020/10/26/df76c07e-1789-11eb-befb-8864259bd2d8_story.html

Kavanaugh:

Mark Joseph Stern @mjs_DC

It’s genuinely terrifying that Kavanaugh wrote this passage. He is abetting Trump’s efforts to delegitimize mail ballots that arrive after Election Day, which are counted in at least 18 states and D.C. It is an ideological and partisan attack on the integrity of the election. https://t.co/RyhCfeiNdY

Josh Moon @Josh_Moon

It's really hard to believe that a justice on the US Supreme Court would put something this stupid in print. Voting by mail is legal and valid. Which means there isn't an election result to overturn until the valid votes are counted. https://t.co/JNXSj6JxEh

October 27th 2020

997 Retweets2,949 Likes

https://slate.com/news-and-politics/2020/10/brett-kavanaugh-mail-ballots-trump-fraud.html

https://www.politico.com/news/2020/10/26/employees-leaving-hhs-432115

https://www.politico.com/f/?id=00000175-65e6-dd19-a175-6de70cc80000

https://www.politico.com/news/2020/10/26/trump-federal-salary-adviser-quits-post-over-executive-order-reclassifying-workers-432507

https://www.washingtonpost.com/politics/meadows-trump-coronavirus/2020/10/26/475f03d2-122f-11eb-82af-864652063d61_story.html

https://finance.yahoo.com/news/stock-market-news-live-october-27-2020-221549037.html

https://www.cnn.com/2020/10/25/politics/biden-leads-trump-polling/index.html

https://thehill.com/homenews/campaign/522706-white-house-lawyer-helped-shop-controversial-hunter-biden-story-to-wall

https://thehill.com/homenews/campaign/522705-us-early-voting-hits-586-million-surpassing-all-of-2016-early-and-absentee

https://www.reuters.com/article/us-global-markets/global-stocks-slide-on-surging-virus-cases-stimulus-doubts-dollar-rises-idUSKBN27B01F

https://www.cnn.com/2020/10/26/politics/black-voter-turnout-election-trnd/index.html

https://www.cnbc.com/2020/10/16/wall-street-donors-line-up-behind-biden-in-massive-third-quarter-fundraising-haul.html

Amy Coney Barrett hearings continue as Trump heads to Pennsylvania rally

 

A deeply divided Senate Judiciary Committee kicked off four days of contentious confirmation hearings on Monday for Judge Amy Coney Barrett, President Trump’s nominee for the Supreme Court, drawing battle lines that could reverberate through the election.

Senator Lindsey Graham, Republican of South Carolina and the committee’s chairman, left little doubt about where the proceedings were heading, gaveling open “the hearing to confirm Judge Amy Coney Barrett to the Supreme Court,” rather than saying it was a hearing to consider her nomination.

“This is probably not about persuading each other unless something really dramatic happens,” Mr. Graham added a short time later. “All the Republicans will vote yes, all the Democrats will vote no.”

Few masks are in sight as Trump returns to the campaign trail and downplays the virus.

“The cure cannot be worse than the problem itself can,” the president told supporters in Sanford, Fla. “If you want to get out there, get out." The president dubiously claimed he is now “immune," though none of his doctors have said that. “I feel so powerful,” Trump said. “I’ll walk into that audience, I’ll walk in there, I’ll kiss everyone in that audience. I’ll kiss the guys and the beautiful women. … Everybody! I’ll just give you a fat kiss.” 

”His return to the campaign trail, with back-to-back-to-back rallies at least through Wednesday, is being driven by Trump himself, according to aides, and his schedule so far reflects the frenetic energy of a man trying to outrun both a deadly illness and an electoral defeat,” Ashley Parker, Josh Dawsey, Sean Sullivan and Toluse Olorunnipa report. "After rallies the first half of the week in Florida, Pennsylvania and Iowa, Trump is expected to return to Florida on Thursday and Friday, as well as hold more rallies over the weekend, probably in Ohio and Wisconsin. … The president also plans to travel soon to North Carolina. 

"Biden campaigned Monday in Ohio, a state Trump won easily four years ago, and will travel Tuesday to Florida … ‘His reckless personal conduct since his diagnosis has been unconscionable,’ Biden said [in Toledo]. … Biden tested negative Monday for the coronavirus, his campaign said. It was the seventh known test he has taken since Oct. 2, the day Trump announced his diagnosis.” White House physician Sean Conley said Monday the president recently tested negative for the coronavirus on “consecutive days,” although he did not specify which days.

Long lines mark the first day of early voting in Georgia. 

“Voters waited for as long as 10 hours across Atlanta and surrounding suburbs to cast their ballots on Georgia’s first day of early voting Monday, leading some to give up and raising questions about whether election officials were prepared for what is shaping up to be a historic early-voting season,” Michelle Ye Hee Lee, Haisten Willis and Amy Gardner report. “The scenes were reminiscent of Georgia’s problem-plagued June primary, when limited polling locations and a rocky rollout of new machines caused voting backups around the state. But on Monday, huge turnout appeared to be the major force in driving the long lines, along with scattered reports of technical problems. … While the lines were longest in the state’s heavily Democratic strongholds in and around Atlanta, Augusta, Savannah and Macon, hours-long waits were also reported in smaller, more conservative counties, including Lowndes and Floyd … By the evening, at least 120,000 voters had cast their ballots." 

New research explores the authoritarian mind-set of Trump’s core supporters. 

“A new book by a psychology professor and a former lawyer in the Nixon White House argues that Trump has tapped into a current of authoritarianism in the American electorate, one that’s bubbled just below the surface for years. In ‘Authoritarian Nightmare,’ Bob Altemeyer and John W. Dean marshal data from a previously unpublished nationwide survey showing a striking desire for strong authoritarian leadership among Republican voters,” Christopher Ingraham reports. “They also find shockingly high levels of anti-democratic beliefs and prejudicial attitudes among Trump backers, especially those who support the president strongly. And regardless of what happens in 2020, the authors say, Trump supporters will be a potent pro-authoritarian voting bloc in the years to come."

“Federal payments to farmers are projected to hit a record $46 billion this year as the White House funnels money to Mr. Trump’s rural base in the South and Midwest ahead of Election Day,” the Times reports. “According to the American Farm Bureau, debt in the farm sector is projected to increase by 4 percent to a record $434 billion this year and farm bankruptcies have continued to rise across the country.”

Charles Koch Continues Fighting for a Court Unfriendly to Market Regulation

 

NY TIMES, Christopher Leonard 

Charles Koch has activated his political network to support Judge Amy Coney Barrett’s nomination, and to tip the scales on her nomination battle in the U.S. Senate. While much of the commentary about Judge Barrett’s nomination has focused on the real prospect that Roe v. Wade may be undermined or overturned, Mr. Koch has other concerns. Judge Barrett’s nomination is the latest battleground in his decades-long war to reshape American society in a way that ensures that corporations can operate with untrammeled freedom. It may be a pivotal one.

Since the early 1970s, Mr. Koch has sought to dismantle most federal regulatory institutions, and the federal courts have been central to that battle. In 1974, Mr. Koch gave a blistering speech to a libertarian think tank, called the Institute for Humane Studies, in which he outlined his vision of the American regulatory state, and the strategy he would employ over the ensuing decades to realize that vision. On the list of government interventions he condemned were “confiscatory taxation, wage and price controls, commodity allocations programs, trade barriers, restrictions on foreign investments, so-called equal opportunity requirements, safety and health regulations, land use controls, licensing laws, outright government ownership of businesses and industries.” As if that list were not exhaustive enough, he added, “… and many more interventions.” In short, Charles Koch believes that an unregulated free market is the only sustainable structure for human society.

To achieve his goal, Mr. Koch has built an influence network with three arms: a phalanx of lobbyists; a constellation of think tanks and university programs; and Americans For Prosperity, a grass-roots army of political activists. And shaping the U.S. judiciary has been part of Mr. Koch’s strategy from the beginning. In that 1974 speech, he recommended strategy of “strategically planned litigation” to test the regulatory authority of government agencies. Such lawsuits could make their way to the Supreme Court, where justices could set precedent. In the 1990s, he focused on lower-level judges, funding a legal institute that paid for judges to attend junkets at a Utah ski resort and Florida beachfront properties; the judges attended seminars on the importance of market forces in society and were warned against consideration of “junk science” — like specific methods to measure the effects of pollution — that plaintiffs used to prove corporate malfeasance.

Mr. Koch also sought to influence the judiciary at the federal level. Between 1997 and 2017, the Koch brothers gave more than $6 million to the Federalist Society, a nonprofit institute that recruits libertarian and conservative judges for the federal judiciary, according to a tally by the activist group Greenpeace.

Mr. Koch’s efforts on the Supreme Court intensified after Donald Trump’s election, when a Republican-controlled Senate opened the way to install judges who could tip the court’s ideological balance. Americans for Prosperity undertook national campaigns to support President Trump’s previous Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh. A.F.P. said the Kavanaugh campaign alone — fliers, digital ads and staff for phone banking and door knocking — ran into “seven figures.”

Now, Americans for Prosperity is doing the same for Judge Barrett. A.F.P. activists are pressuring U.S. senators in several states, with a particular eye toward vulnerable Democrats like West Virginia’s Joe Manchin. The group is also working in Alaska, where Republican Lisa Murkowski has given mixed signals about whether she is willing to vote on Judge Barrett’s nomination before the next president is elected.

Mr. Koch is selective about where he spends on politics, and the returns to reshaping the Supreme Court could dwarf the millions he’s invested. The court plays a pivotal role in determining how much regulatory power the federal government has over corporate America. The closest the Supreme Court has come to reflecting Koch’s vision for regulation is the so-called “Lochner era” of the early 20th century, during which an activist court struck down a wide-range of federal regulations on business, turning the country into a free market free-fire zone.

WIKIPEDIA

[The Lochner era is a period in American legal history from 1897 to 1937 in which the Supreme Court of the United States is said to have made it a common practice "to strike down economic regulations adopted by a State based on the Court's own notions of the most appropriate means for the State to implement its considered policies".^[1] The court did this by using its interpretation of substantive due process to strike down laws held to be infringing on economic liberty or private contract rights.^[2][3] The era takes its name from a 1905 case, Lochner v. New York. The beginning of the era is usually marked earlier, with the Court's decision in Allgeyer v. Louisiana (1897), and its end marked forty years later in the case of West Coast Hotel Co. v. Parrish (1937), which overturned an earlier Lochner-era decision.^[4]

The Supreme Court during the Lochner era has been described as "play[ing] a judicially activist but politically conservative role".^[5] The Court sometimes invalidated state and federal legislation that inhibited business or otherwise limited the free market, including laws on minimum wage, federal (but not state) child labor laws, regulations of banking, insurance and transportation industries.^[5] The Lochner era ended when the Court's tendency to invalidate labor and market regulations came into direct conflict with Congress's regulatory efforts in the New Deal.

Since the 1930s, Lochner has been widely discredited as a product of a "bygone era".^[1] Robert Bork called Lochner "the symbol, indeed the quintessence, of judicial usurpation of power".^[6] In his confirmation hearings to become Chief Justice, John Roberts said, "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law", concluding that the Lochner court substituted its own judgment for the legislature's findings.^[7]]

A Supreme Court that has swung hard to the right could reverse earlier decisions and issue new ones that create something like a new Lochner era. In the world of corporate law, the lodestar legal case is Chevron U.S.A. Inc. v. Natural Resources Defense Council. This case, decided in 1984, created an important legal precedent called “Chevron deference.” It holds that courts should generally defer to an agency’s interpretation of a law enacted by Congress when the law is ambiguous (provided that the agency interpretation is reasonable). This helps empower agencies like the Environmental Protection Agency to operate complex regulatory regimes, even if some details are not specifically detailed in the law. The current Supreme Court has signaled a willingness to reconsider this precedent, a move that could dramatically weaken federal regulatory agencies.

Mr. Koch and the Trump administration are united in their desire to undo the Chevron decision. Mark Holden, a board member of Americans for Prosperity, has publicly decried Chevron deference as a tool of tyranny. “The administrative state is often fundamentally at odds with our carefully crafted constitutional order,” Mr. Holden, then general counsel for Koch Industries, wrote in a 2018 op-ed essay for The Hill. He said the legal precedent gave agencies like E.P.A. so much power that they consolidated the authority of all three branches of government under one roof: Passing rules, enforcing them and then handing down verdicts in administrative courts. At the White House, a former White House counsel, Donald F. McGahn II, said the Trump administration sought to appoint Supreme Court justices who would rein in the independent agencies. Justice Gorsuch, for example, wrote multiple appeals court opinions that echoed Mr. Holden’s views.

The Koch network apparently has faith that Judge Barrett will rule in concert with these beliefs. This is something of a gamble. She has been a federal judge for only three years, leaving a short paper trail of cases and academic work from which to deduce her views. Judge Barrett’s legal writings do point toward one important idea: She, like many judges, appears to believe that some precedents which the court has created with its decisions should be overturned. Judge Barrett has publicly said that her judicial philosophy is the same as former Justice Antonin Scalia. As Lisa Heinzerling, a law professor at Georgetown, told The Washington Post, what this signals depends on which version of Justice Scalia Judge Barrett agrees with. Justice Scalia was a supporter of Chevron deference early in his tenure, but became more skeptical of it over time as he defended the power of courts to undo or weaken acts of Congress.

The Americans for Prosperity campaign literature supporting Judge Barrett does not appear to mention the Chevron case, nor any other ruling about corporate power. One Facebook ad simply says that she is “committed to our Constitution, and that she won’t legislate from the bench.” Spokesmen for A.F.P. echo that line, emphasizing that the Koch network isn’t looking for policy outcomes, but for honest jurists who will follow the Constitution to the letter.

History shows that it is just as effective to legislate from the bench by striking down laws as by upholding them. The Lochner era proves that policy negation is just as powerful as creation, and it affects just as many lives. As Charles Koch has written and stated so often in the past five decades, there are many, many laws and programs that he would like to negate. With the nomination of Judge Barrett to the court, he appears to be closer than ever to achieving this goal.

Court-Packing

 

LETTERS FROM AN AMERICAN

The talking point on the Sunday talk shows, pushed hard by Republicans and enabled by the media, was that Democratic presidential nominee Joe Biden needs to explain his stance on “court-packing,” that is, adding more justices to the Supreme Court. Some Democrats have begun to talk about that outcome if the Republicans ram through Amy Coney Barrett in these last few days before the election.

This is bizarre first of all because the Republican Party did not even bother to write a platform this year to explain any policies at all for another Trump term, and Trump has been unable to articulate any plans for the future, while the idea of “court-packing” is a future hypothetical, dependent on what today’s Republican Senate does.

It’s bizarre because Trump is egging on his followers to violence—just today he urged supporters to “FIGHT FOR PRESIDENT TRUMP.” He is so misrepresenting the reality of the coronavirus pandemic that today Twitter tagged one of his tweets as a violation of Twitter rules and Dr. Anthony Fauci publicly objected to the Trump campaign’s misrepresentation of his statements about Trump’s handling of the pandemic. The campaign quoted Fauci out of context and without his permission, but campaign spokesperson Tim Murtaugh dismissed Fauci’s complaint, saying that they were indeed Fauci’s words, and Trump agreed. The New York Times has also continued its coverage of Trump’s taxes, showing him to be deep in what amounts to a pay-to-play scandal, in which he has essentially turned the U.S. government over to the highest bidder, revealing himself to be the most corrupt president in U.S. history.

And yet, today the chair of the Republican National Committee, Ronna McDaniel, told Margaret Brennan on CBS’s “Face The Nation” that she would not talk about Trump’s financial scandals because “You have a Democrat running on the biggest power grab – the absolute biggest power grab in the history of our country and reshaping the United States of America and not answering the question. That’s all we should be talking about.” The media seems to be taking this distracting bait.

What makes this so especially bizarre is that it is Republicans, not Democrats, who have made the courts the centerpiece of their agenda and have packed them with judges who adhere to an extremist ideology. Since the Nixon administration began in 1969, Democrats have appointed just 4 Supreme Court justices, while Republicans have appointed 15.

The drive to push the court to the right has led Republicans under Senate Majority Leader Mitch McConnell to take the unprecedented step of refusing to hold a hearing for Barack Obama’s nominee for the Supreme Court, the moderate Merrick Garland, on the grounds that it was wrong to appoint a Supreme Court justice during an election year. There have been 14 justices confirmed during election years in the past, but none has ever been confirmed after July before an election.

Obama nominated Garland in March 2016, but now, in October, McConnell is ramming through Trump’s nominee Amy Coney Barrett.

Americans are worried that the increasingly conservative cast to the court does not represent the country. Four, and now possibly five, of the current justices were appointed by presidents who lost the popular vote, and have been confirmed by senators who represent a minority of the American people: Justice Brett Kavanaugh’s Senate support represented just 44% of the country.

So there is talk of increasing the size of the Supreme Court. This is legal. The Constitution does not specify the size of the court, and it has changed throughout our history. But the current number of justices—9— has been around for a long time. It was established in 1869. 

-----

Since Nixon, Republicans have made control of the nation’s courts central to their agenda. But while most voters tend to get distracted by the hot-button issues of abortion or gay rights, what Republican Supreme Courts have done is to consolidate the power of corporations.

In 1971, a corporate lawyer for the tobacco industry, Lewis Powell,[above] wrote a confidential memo for the U.S. Chamber of Commerce warning that corporate America needed to work harder to defend what he called “free enterprise.” Angry that activists like Ralph Nader had forced safety regulations onto automobile manufacturers and the tobacco industry, he believed that businessmen were losing their right to run their businesses however they wished. Any attack on “the enterprise system,” he wrote, was “a threat to individual freedom.”

Powell believed that business interests needed to advance their principles “aggressively” in universities, the media, religion, politics… and the courts. “The judiciary,” he wrote, “may be the most important instrument for social, economic and political change.” He wrote that “left” institutions like the American Civil Liberties Union (ACLU), labor unions, and civil rights activists were winning cases that hurt business. “It is time for American business—which has demonstrated the greatest capacity in all history to produce and to influence consumer decisions—to apply its great talents vigorously to the preservation of the system itself.”

The following year, Nixon appointed Powell to the Supreme Court. During his tenure in office, Nixon would appoint three more justices. Nixon’s successor, Gerald Ford, would appoint another.

Democratic President Jimmy Carter, who followed Ford, appointed none.

Under President Ronald Reagan, cementing the interests of business in the Supreme Court would become paramount. Reagan’s Attorney General, Edwin Meese, deliberately politicized the Department of Justice in an attempt, as he said, to “institutionalize the Reagan revolution so it can’t be set aside no matter what happens in future elections.” Reagan made 4 appointments to the Supreme Court.

During Reagan’s term, lawyers eager to push back on the judicial decisions of the post-WWII Supreme Court that had expanded civil rights and the rights of workers began to organize. They wanted to replace the current judges with ones who believed in “originalism” and who would thus cut regulations and expanded civil rights.

In 1982, law students at Yale, Harvard, and the University of Chicago organized the Federalist Society for Law and Public Policy Studies to advance a legal ideology that opposed what they believed was “judicial activism.” Judges who expanded rights through their interpretation of the laws were “legislating from the bench,” they believed, intruding on the rights of the legislative branch of the government.

By the time of President George W. Bush, the Federalist Society was enormously influential. Members of the society made up about half of his judicial appointments. The society also urged Bush to stop letting the American Bar Association rate judicial nominees, believing the ABA was too “liberal” and therefore rated conservative judges more harshly than others.

During the Obama administration, justices who were associated with the Federalist Society were deciding votes for the 2010 Citizens United decision permitting businesses unlimited contributions to political campaigns and the 2013 Shelby v. Holder decision gutting the 1965 Voting Rights Act.

Under Trump, its power has grown even greater. Five of the 8 current members of the Supreme Court—Samuel Alito, John Roberts, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh—and now Supreme Court nominee Amy Barrett, are members of the Federalist Society.

While Republicans desperately want to make the Barrett nomination about her religion, the reality is that the members of the Supreme Court who are wedded to an originalist interpretation of the document threaten far more than reproductive rights. Among other things, the court is taking up the Affordable Care Act just a week after the election.

Notes:

https://www.npr.org/2020/10/11/922806310/biden-campaign-continues-to-deflect-on-court-packing

https://en.wikipedia.org/wiki/List_of_presidents_of_the_United_States_by_judicial_appointments

Powell memo: https://d1uu3oy1fdfoio.cloudfront.net/wp-content/uploads/2012/09/Lewis-Powell-Memo.pdf

https://billmoyers.com/content/the-powell-memo-a-call-to-arms-for-corporations/

https://www.theatlantic.com/politics/archive/2018/10/senators-kavanaugh-represented-44-percent-us/572623/

https://www.npr.org/2016/11/03/500560120/senate-republicans-could-block-potential-clinton-supreme-court-nominees

https://www.nytimes.com/interactive/2020/10/10/us/trump-properties-swamp.html

https://www.cnbc.com/2020/09/26/koch-network-campaign-for-support-trump-supreme-court-nominee.html

https://www.cnn.com/2020/10/11/politics/fauci-trump-campaign-ad-out-of-context/index.html

Trump promised to bring China to heel. He didn’t. The result is a pitched conflict.

“Trump’s bet that he could tame China’s rise through a mix of personal charisma and dealmaking prowess has faltered in the fourth year of his presidency,” David Nakamura reports. “Trump and Chinese President Xi Jinping … have not spoken since March. Tensions over the coronavirus pandemic have exposed Trump’s claims of friendship with Xi … Trump was on the precipice of declaring victory with his China strategy as recently as January, when he hosted senior Communist Party officials in a White House celebration of a modest trade pact. But the president has since shifted to attacking Beijing as an even greater danger than he suggested in 2016 … Yet Trump’s renewed tough talk has served as a tacit acknowledgment that his vow to bring China to heel has failed, even as he seeks to convince voters that [Biden] is not strong enough to stand up to Xi. … Trump has moved the U.S.-China relationship from one of skeptical cooperation to one of distrust and antagonism, leaving the world’s two major powers at odds on a range of economic and national security issues that are resonating around the globe." 

• North Korea’s massive, new intercontinental ballistic missile was paraded through the streets of Pyongyang over the weekend, a chilling reminder the regime poses a greater threat to the United States now than when Trump took office. Kim Jong Un has the capacity to strike our homeland. (Simon Denyer)

GOTHAMIST

Police Arrest Heshy Tischler As His Backers Swarm Home Of The Jewish Journalist He Targeted

BY JAKE OFFENHARTZ

OCT. 12, 2020 10:36 A.M.

 • 233 COMMENTS

Heshy Tischler at a protest he organized on October 7th STEPHEN LOVEKIN/SHUTTERSTOCK

Four days after leading a violent mob against a journalist in clear view of NYPD officers, Heshy Tischler, the right-wing radio host and City Council candidate, was arrested by police outside his Borough Park home on Sunday night.

Tischler was charged with unlawful imprisonment and inciting a riot in connection with the assault of Hasidic journalist Jacob Kornbluh on October 7th, police said. Shortly after his arrest, Tischler's ultra-Orthodox supporters gathered outside Kornbluh's home, waving Trump flags and threatening him until the early hours of Monday morning.

Tischler, an outspoken Trump supporter and coronavirus denialist, has commanded the community's bubbling rage over Governor Andrew Cuomo's renewed lockdown measures, leading a string of protests that have erupted in violence against bystanders and journalists.

Within minutes of his arrest on Sunday, a post from Tischler's Twitter account revealed Kornbluh's address. Video shows hundreds of people gathered in the street and attempting to storm the building. A friend of Kornbluh's said the group stayed until 2 a.m.

Kornbluh, a veteran journalist with Jewish Insider, has drawn the ire of some in the community for his reporting on attempts to skirt social distancing restrictions during the pandemic.

On Wednesday night, Tischler urged a crowd to surround Kornbluh while chanting "moser" — a term for a Jewish informant, deserving of the death penalty, according to some religious texts. The mob repeatedly lunged at the reporter, pinning him against a wall, while kicking and spitting at him.

"Yeah he got beat up," one of the men involved in the beating told Gothamist afterward. "He's lucky to be alive."

On Friday, Tischler claimed he'd reached an agreement with NYPD to turn himself into police on Monday, after the Jewish holiday of Simchat Torah.

According to Reverend Kevin McCall, a Black civil rights leader, Tischler had arranged with Chief of Detectives Rodney Harrison and Brooklyn District Attorney Eric Gonzalez to surrender alongside McCall. Authorities changed their mind, McCall said, after Tischler claimed in a video that he was reconsidering the offer.

"You're arresting me when we made a deal," Tischler can be seen shouting on Sunday night, as police dragged him away in handcuffs. "We made a deal that I was going to be arrested tomorrow."

"This is serious crime," Rev. McCall told Gothamist. "If it was in a Black community, he would've been arrested immediately. Even after the mayor and governor called for his arrest, for him not to be in police custody says something about the New York City police department. Are they afraid of Heshy?"