There Should Be No Doubt Why Trump Would Nominate Amy Coney Barrett

 JEFFREY TOOBIN SEPTEMBER 26, 2020

Amy Coney Barrett, whom President Trump will reportedly nominate to replace Ruth Bader Ginsburg on the Supreme Court, was born in 1972, so she can expect to spend several decades shaping both American law and American life. As it happens, a year before Barrett’s birth, Lewis F. Powell, Jr., then a prominent lawyer in Richmond, Virginia, and later a Supreme Court Justice himself, wrote a now famous memorandum to the United States Chamber of Commerce, arguing that businesses needed to take a more aggressive hand in shaping public policy. “The American economic system is under broad attack,” he wrote, from, specifically, the consumer, environmental, and labor movements. He added that “the campus is the single most dynamic source” of that attack. To counter it, Powell suggested that business interests should make a major financial commitment to shaping universities, so that the “bright young men” of tomorrow would hear messages of support for the free-enterprise system. A little less than a decade later, a pair of law professors named Robert Bork and Antonin Scalia signed on as the first faculty advisers to a fledgling organization for conservative law students called the Federalist Society for Law and Public Policy Studies. The efforts of the Federalist Society were lavishly funded by the business interests invoked by Powell, and it has trained a generation or two of future leaders. Not all of them have been “bright young men.” Some are women, including Barrett, and her nomination would vindicate Powell’s plan and transform the Supreme Court.

Barrett made an appealing first impression in 2017, during her confirmation hearings to the federal bench. She and her husband are the parents of seven children. For many years, she was a popular professor at Notre Dame Law School, which she also attended and from which she graduated summa cum laude. She clerked on the Supreme Court for Justice Scalia. As a judge on the Seventh Circuit, she has been a reliable conservative voice. Even liberal peers in the academy find her personable. She would probably do well in providing the artful non-answers that are the currency of Supreme Court confirmation hearings before the Senate Judiciary Committee, just as she did in 2017.

But there should be no doubt about why Barrett, barring any late-breaking surprises, would be chosen. Much of the commentary about her selection would focus on the issue of abortion, and her likely role in overturning Roe v. Wade. During the 2016 campaign, Trump repeatedly promised to appoint Justices who would vote to overrule that landmark, and with his three selections, including Neil Gorsuch and Brett Kavanaugh, he appears to have delivered. Barrett is not only a member of a conservative organization within the Catholic Church; her legal writings, and the views of some who know her, suggest that she would overturn Roe.

Still, it’s worth remembering the real priorities of Trump and Mitch McConnell, the Senate Majority Leader, in this nomination. They’re happy to accommodate the anti-abortion base of the Republican Party, but an animating passion of McConnell’s career has been the deregulation of political campaigns. The Supreme Court’s Citizens United decision brought the issue to wide public attention, but McConnell has been crusading about it for decades. He wants the money spigot kept open, so that he can protect his Senate majority and the causes for which it stands. This, too, is why the Federalist Society has been so lavishly funded over the years, and why it has expanded from a mere campus organization into a national behemoth for lawyers and students. Under Republican Presidents, Federalist Society events have come to operate as auditions for judicial appointments. The corporate interests funding the growth of the Federalist Society probably weren’t especially interested in abortion, but they were almost certainly committed to crippling the regulatory state.

Barrett is a product of this movement, and not just because she clerked for Scalia. Her writings and early rulings reflect it. Her financial-disclosure form shows that, in recent years, she has received about seven thousand dollars in honoraria from the Federalist Society and went on ten trips funded by it. But it’s not as if Barrett was bought; she was already sold. The judge has described herself as a “textualist” and an “originalist”—the same words of legal jargon that were associated with Scalia. (She believes in relying on the specific meaning of the words in statutes, not on legislators’ intent. She interprets the Constitution according to her belief in what the words meant when the document was ratified, not what the words mean now.) But these words are abstractions. In the real world, they operate as an agenda to crush labor unions, curtail environmental regulation, constrain the voting rights of minorities, limit government support for health care, and free the wealthy to buy political influence.

It should go without saying that the nomination and the expected confirmation of Barrett in the final days before a Presidential election would represent a paramount act of hypocrisy for McConnell and the other Republicans who denied even a hearing to Merrick Garland, President Barack Obama’s choice for the Supreme Court, in 2016. But the fact that these Republicans are willing to risk that charge shows how important the Supreme Court is to them. Far more than a senator, a Supreme Court Justice can deliver on the agenda. 

In a 5-4 decision, SCOTUS sides with abortion rights

VOX

On Monday, the Supreme Court struck down a Lousiana law restricting abortion access in a 5-4 decision. Chief Justice John Roberts, who also penned a separate concurring opinion, joined the Court’s liberal wing. [ABC News / Alexandra Svokos] The case — June Medical Services v. Russo — is a major win for abortion rights advocates, many of whom had feared that a more conservative Court would uphold the Louisiana law and undercut Roe v. Wade. [LA Times / David G. Savage] The law in question, which mandated that all abortion providers in Louisiana have admitting privileges at a nearby hospital, is what is known as a TRAP law: a targeted restriction on abortion providers that makes it harder for those providers to operate. [The Cut / Hannah Gold] Though it was passed in 2014, the Louisiana law never went into effect. It was first blocked by a district court judge before being upheld by the Fifth Circuit; the Supreme Court again put the law on hold while it considered the case. [NPR / Nina Totenberg and Brian Naylor] While Monday’s decision is good news for abortion rights, it doesn’t mean that Roe is safe. As Vox’s Ian Millhiser writes, Roberts’s opinion is “laden with hints that, in a future case, he is likely to vote to restrict — or even eliminate — the constitutional right to an abortion.” [Vox / Ian Millhiser] The Supreme Court also handed down another influential decision Monday. In Seila Law v. CFPB, the Court decided 5-4 that the president has the power to unilaterally fire the head of the Consumer Financial Protection Bureau at will. [NYT / Adam Liptak] When the agency was established following the 2008 financial crisis, it was designed to operate independently. Monday’s decision attenuates that independence, but allows the agency to continue its works rather than striking it down outright. [Roll Call / Todd Ruger and Jim Saksa] The Court also passed up a major case Monday when it turned down an appeal regarding the federal death penalty. The decision clears the way for executions to resume for the first time since 2003 under new Justice Department policy. [Washington Post / Robert Barnes and Mark Berman]

Supreme Court blocks Trump’s bid to end DACA, a win for undocumented ‘dreamers’

WASHINGTON POST

The Supreme Court on Thursday rejected the Trump administration’s attempt to dismantle the program protecting undocumented immigrants brought to the United States as children, a reprieve for nearly 650,000 recipients known as “dreamers.”

The 5-to-4 decision, written by Chief Justice John G. Roberts Jr., stunned President Trump, who said in a tweet that it and a ruling earlier this week that federal law protects LGBTQ workers were “shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives.”Roberts was in the majority in both cases, and Thursday’s ruling showed once again the pivotal role he now plays at the center of the court.

His low-key ruling was technical — the administration had not provided proper legal justification, he said, for ending the Deferred Action for Childhood Arrivals (DACA) program implemented by President Barack Obama eight years ago. It allows qualified enrollees to work, study and remain in the United States on a renewable permit.  Roberts has at times joined the court’s liberal members — as happened Thursday — to make clear for the president that his administration does not make the rules.

Roberts wrote: 

“The dispute before the court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so,” he wrote in an opinion joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

He added: “We address only whether the [Department of Homeland Security] complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”

That goes well beyond whether hundreds of thousands of people would remain protected from deportation, Roberts wrote.

“Since 2012, DACA recipients have enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on the DACA program, Roberts wrote, quoting from briefs in the case.

“The consequences of the rescission, [advocates] emphasize, would ‘radiate outward’ to DACA recipients’ families, including their 200,000 U.S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them.
. . . In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years.”

While the program does not provide a direct path to citizenship, it provides a temporary status that shields them from deportation and allows them to work. The status lasts for two years and can be renewed.

Technically, the Trump administration could restart the process and provide the justification the court’s majority said was required. But the process is long, and there is no evidence Congress would want to pass legislation that would end the program.

In fact, it is quite popular with the public. A Pew Research survey conducted this month found that 74 percent of Americans favored granting permanent legal status to immigrants who came illegally to the United States when they were children, while 24 percent opposed.

A 57 percent majority of Republicans and Republican-leaning independents expressed support, as did 89 percent of Democrats. Other polls have found similar results.

Supreme Court Decision Gives Landmark Protections to LGBT Workers

VOX

• On Monday, the Supreme Court issued a major civil rights decision, ruling 6-3 that LGBTQ individuals are protected by Title VII of the Civil Rights Act of 1964. [NYT / Adam Liptak]
•  
• The act prohibits workplace discrimination on the basis of “race, color, religion, sex, or national origin,” and Monday’s ruling affirms that those protections extend to an employee’s sexual orientation or gender identity. [Vox / Ian Millhiser]
•  
• The decision is a big deal: As Slate’s Mark Joseph Stern tweeted, it is “by a mile, the biggest legal victory transgender Americans have won in the history of the nation.” [Twitter / Mark Joseph Stern]
•  
• Justice Neil Gorsuch, a conservative Trump appointee, joined the liberal wing of the Court along with Chief Justice John Roberts, leaving justices Kavanaugh, Alito, and Thomas in the minority. Gorsuch also wrote the decision. [Politico / Josh Gerstein and Rebecca Rainey]
• 
• The Court combined three cases in Monday’s Bostock v. Clayton County decision. In addition to Bostock, the ruling also addresses Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC. [Daily Beast / Jay Michaelson]
•  
• Aimee Stephens, the plaintiff in Harris Funeral Homes, sued her former employer after she was fired in 2013 for telling her boss that she planned to transition to female. Stephens died last month of kidney failure, but her case, the first major trans rights case to be heard before the Supreme Court, will impact the lives of millions of trans people in the US. [Vox / Katelyn Burns]
•  
• In addition to issuing a decision in Bostock v. Clayton County, the Court turned down several potential cases on Monday. Justices decided against accepting 10 different cases relating to the Second Amendment. [CNN / Jamie Ehrlich]
•  
• They also rebuffed Trump’s Justice Department, which had requested that the Court consider its appeal regarding a sanctuary law in California. Previously, the Ninth Circuit Court of Appeals upheld the law, which prohibits local law enforcement from informing federal agents when immigrants are set to be released from prison. [NBC News / Pete Williams]

It’s a sea change in legal protections for gay rights, one that matches up with public opinion.

A June CBS News poll found that 82 percent of Americans say that gay, lesbian and bisexual people should be protected under civil rights law, including 71 percent of Republicans. Approval of same-sex marriage and gay rights has grown rapidly in America over the past decade.

• 

Former city council candidate arrested after man is shot at New Mexico protest with militia group

Police in Albuquerque on Tuesday announced they had arrested a former city council candidate who they say shot and wounded a man at a protest that grew contentious as demonstrators clashed with a militia group.

The Monday night episode — which erupted after a crowd tried to tear down a monument to Spanish conquistador Juan de Oñate — appeared to reflect a phenomenon that federal and state officials have long warned about: Protests over racial injustice, such as the ones currently roiling American cities, can draw a medley of fringe actors or groups with their own ideological agendas.

In the hours leading up to the violence Monday, protesters faced off with members of an armed group that calls itself the New Mexico Civil Guard and counterprotesters toting “All lives matter” signs. Several members of the armed group told The Washington Post they were worried that tearing down the statue would beget widespread destruction of property.

The members said they did not know the alleged shooter or the victim and cast themselves as attempting to prevent violence from erupting at a tense scene. But state officials denounced their presence, which they said was meant to intimidate protesters.

“The heavily armed individuals who flaunted themselves at the protest, calling themselves a ‘civil guard,’ were there for one reason: To menace protesters, to present an unsanctioned show of unregulated force,” New Mexico Gov. Michelle Lujan Grisham (D) said in a statement.

Experts say contact tracing is the best tool we've got until there’s a vaccine.

“Contact tracing failed to stanch the first wave of coronavirus infections, and today’s far more extensive undertaking will require 100,000 or more trained tracers to delve into strangers’ personal lives and persuade even some without symptoms to stay home. Health departments in many of the worst-affected communities are way behind in hiring and training those people. The effort may also be hobbled by the long-standing distrust among minorities of public health officials, as well as worries about promising new technologies that pit privacy against the public good," Frances Stead Sellers and Ben Guarino report. "Still, as states relax restrictions, public health experts say wide-scale contact tracing is the price that must be paid to reopen safely without reverting to the blanket shutdowns that put nearly 40 million Americans out of work. Time is of the essence, they say, taking advantage of the drop in cases resulting from the shutdowns. … Across the country, the efforts to ramp up are vast and varied. The University of California at San Francisco has been tapped by the state to create a Pandemic Workforce Training Academy that will train as many as 3,000 people for the state’s 58 county health departments … In Rhode Island, Gov. Gina Raimondo (D) unveiled a free voluntary app that health officials hope will prove more reliable than people’s memories in re-creating their recent contacts.”

 

Today's coronavirus snapshot, as of 11 am ET Monday: 2,094,205 confirmed US cases (7,944,236 worldwide) 115,732 confirmed US deaths (434,060 worldwide) 23,535,104 tests conducted in the US (71,535 tests per million people) —Dylan The news from America's emerging Covid-19 hot spots did not get any better over the weekend. Florida hit a record high in new cases on Saturday. Texas just missed doing the same, but the direction in that state and several others is clear: Cases are going up. An ICU nurse in Arizona warned their wards are filling up with "the sickest patients I've ever taken care of," according to this Facebook post shared by Reuters reporter Yahaira Jacquez. "I barely see my family because I'm scared to give it to them." Current Covid-19 hospitalizations in the state topped 1,400 on Saturday, nearly doubled from a month ago. More coronavirus patients are in the ICU there than ever before. Arkansas, Texas, and North Carolina also saw new highs in Covid-19 hospitalizations over the weekend. Red flags have been raised all over the country. Vox's Brian Resnick explained: People should think about Covid-19 risk in four dimensions: distance to other people, environment, activity, and time spent together. More distance is better, outdoors is safer than indoors, activities that involve lots of exhaling (like singing or shouting) are more dangerous than quieter ones, and a longer time spent with others is more dangerous than a shorter time. Perhaps a helpful way to think about the risk is this: Imagine everyone is smoking, as Ed Yong suggested in the Atlantic, and you’d like to avoid inhaling as much smoke as possible. In a cramped indoor space, that smoke is going to get dense and heavy fast. If the windows are open, some of that smoke will blow away. If fewer people are in the space, less smoke will accumulate, and it might not waft over to you if you’re standing far enough away. But spend a lot of time in an enclosed space with those people, and the smoke grows denser. The denser the smoke, the more likely it is to affect you. It’s the same with this virus: The more of it you inhale, the more likely you are to get sick. Americans have done a good job of social distancing so far: according to a recent AP/NORC poll, 90 percent of people say they are wearing masks, as of early June, up from 78 percent in early April. But while most people are also still avoiding crowded places and contact with high-risk people, adherence to those preventive measures is starting to dip a bit, according to the survey. That is worrisome. We have to stay vigilant. That doesn't mean eternal lockdown. It's simply unrealistic to shut down society for six months or a year and, besides, there is of course a real and measurable cost to people's financial and physical health. But the tradeoff for some resumption of normal life should be tolerating a few impositions in order to protect ourselves and others. The evidence is pretty persuasive that wearing masks reduces Covid-19's spread, as Lois Parsley covered for Vox. As Vox's German Lopez and Amanda Northrop reported, we should start thinking about our behavior in terms of harm reduction. Hanging at home with your housemates is, of course, the safest option. But outdoor activities can also be thought of as a moderate risk, especially with some easy precautions like wearing a mask and washing your hands. The government can of course do more to make reopening safer. It can increase funding for contact tracing, it can be cautious in relaxing its social distancing guidance, it could even provide more money to help reduce the financial pain of the crisis and relieve some of the urgency about reopening. States and the feds could also do more to protect older people in nursing homes, where so many lives have already been lost due to a poor response. Despite the federal government's promises to send more protective gear to those facilities, the workers at nursing homes report much of what they have received from the feds is unusable, according to a new Wall Street Journal report. That needs to be fixed. But we can't depend on the government entirely. Reopening is upon us, and it's the responsibility of each person to do what we can, for our sake and everyone's, to be safe and prevent Covid-19 from growing out of control. The early signs are troubling. There is no time to waste.

The Supreme Court Fails Us.This Is How Republicans Steal an Election, and Maybe Kill Some Dems in the Process

LINDA GREENHOUSE, NY TIMES
The Supreme Court just met its first test of the coronavirus era. It failed, spectacularly.

I was hoping not to have to write those sentences. All day Monday, I kept refreshing my computer’s link to the court’s website.

I was anxious to see how the justices would respond to the urgent request from the Republican National Committee and Wisconsin’s Republican-controlled Legislature to stop the state from counting absentee ballots postmarked not by Tuesday’s election but during the following few days.

A federal district judge, noting that Wisconsin’s election apparatus was overwhelmed by the “avalanche of absentee ballots” sought by voters afraid to show up at crowded polling places, had ordered the extra time last Thursday, with the full support of the state’s election officials. Was I the only one left in suspense on Monday, holding out hope that the five Republican-appointed Supreme Court justices would put partisanship aside and let the District Court order stand?

In early evening, the answer landed with a thud. No, they would not.

In more than four decades of studying and writing about the Supreme Court, I’ve seen a lot (and yes, I’m thinking of Bush v. Gore). But I’ve rarely seen a development as disheartening as this one: a squirrelly, intellectually dishonest lecture in the form of an unsigned majority opinion, addressed to the four dissenting justices (Need I name them? Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), about how “this court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

Let’s think about that. “Ordinarily not alter”?

There are quite a few things that should not ordinarily be happening these days. People shouldn’t ordinarily be afraid of catching a deadly virus when exercising their right to vote. Half the poll-worker shifts in the city of Madison are not ordinarily vacant, abandoned by a work force composed mostly of people at high risk because of their age.

Milwaukee voters are not ordinarily reduced to using only five polling places. Typically, 180 are open. (Some poll workers who did show up on Tuesday wore hazmat suits. Many voters, forced to stand in line for hours, wore masks.) And the number of requests for absentee ballots in Milwaukee doesn’t ordinarily grow by a factor of 10, leading to a huge backlog for processing and mailing.

I wonder how Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh understand the word “ordinarily.” And I wonder why the opinion was issued per curiam — “by the court.” Did none of the five have the nerve to take ownership by signing his name?

That the dispute that reached the Supreme Court was the result of intense partisan rancor in a state with a history of Republican-devised voter suppression should have been reason enough for the conservative bloc to stay its hand. Instead, it seems to have been catnip: The Wisconsin Republicans, after all, needed the Supreme Court’s help if they were to keep voter participation as low as possible.

As the pandemic crisis mounted and other states started postponing their elections, Wisconsin’s Republican-gerrymandered State Legislature blocked efforts by Gov. Tony Evers, a Democrat, to go to all-mail balloting or to defer the election until June. This was an important election, including not only the Democratic presidential primary but also a highly charged state Supreme Court election, plus elections for 139 other judicial offices and more than 3,000 local positions. The stymied Democrats eventually went to court, seeking an order to postpone the election or, failing that, at least grant relief to those absentee voters who could not possibly get their ballots in on time.

In his ruling last Thursday, the District Court judge, William Conley, declined to take what he called “the extraordinary step of delaying a statewide election at the last minute.” Nonetheless, he said, he was persuaded that “the asserted harm is imminent and a timely resolution is necessary if there is any hope of vindicating the voting rights of Wisconsin citizens.”

In fashioning his order, Judge Conley noted that the head of the Wisconsin Election Commission had assured the court that moving the deadline “will not impact the ability to complete the canvass in a timely manner.” He also observed that “the amicus briefs from various local governments suggest that an extension of the deadline would be heartily welcomed by many local officials.” The United States Court of Appeals for the Seventh Circuit denied the Republicans’ request for a stay. The urgent appeal to the Supreme Court followed.

I’ve described the reasoning in the judge’s 53-page opinion in this detail because anyone reading only the Supreme Court’s majority opinion would come away thinking that the order was the act of a rogue judge, cramming an extreme remedy for a nonexistent problem down the throat of a resistant public. There is barely a hint in the opinion of the turmoil in the country. Did it not occur to these justices to wonder why they were working at home rather than in their chambers? It was left to Justice Ginsburg in her dissenting opinion to point out that “the District Court was reacting to a grave, rapidly developing public health crisis.”



MICHAEL TOMASKY, DAILY BEAST

If you’re still naive enough to believe that this November’s election is going to be fair, you need to pay attention to what just happened in Wisconsin. The facts are plain. We have a political party of gangsters, and they are going to steal the election.

Things seems to have worked in Wisconsin exactly as Republicans planned. Just under 19,000 people braved the lines and the pandemic to cast votes yesterday in Milwaukee. As the Journal-Sentinel noted, “That number will be dwarfed by absentee balloting when the numbers are counted.”

Republicans are counting on having an advantage in those absentee ballots, meaning that the race they cared about here, the whole reason they rigged this, seems likely to go in their favor. Conservative State Supreme Court Justice Daniel Kelly will probably defeat liberal challenger Jill Karofsky. If he wins, Kelly—who recused himself from the decision from the state high court that allowed this insane in-person election to go on in the first place — will be poised to cast the court’s deciding vote in a case that will purge more than 200,000 voters from the rolls in time for this November’s election.

It’s impossible to overstate how sick and venal and corrupt this is, and the corruption involves everyone from state pols to Justice John Roberts, who was part of that despicable Supreme Court decision Monday night allowing the election to go on. I’d call it a conspiracy, but it’s not that. Conspiracies are hidden. This, they’re doing in plain sight, right in front of us. They are openly, flauntingly, proudly against free elections.

It happens in stages. Stage One is rig the legislature. In 2018, Democratic candidates for Wisconsin state assembly won 190,000 more votes than Republicans collectively. And yet, Republicans miraculously won 63 of 99 seats.

Stage Two is file a lawsuit arguing that the state has to purge voters who failed to respond to a mailer from the state elections commission. I don’t know Wisconsin state election law, but morally and logically, the idea that voters should have to respond to a mailer to preserve their right to vote is insane. It’s an obvious attempt to purge the rolls in a way that hits people of color and more Democrats than Republicans.

Stage Three is to get the courts to call this legal. Wisconsin Republicans found their scheme thwarted here, for two reasons. First, an appeals court earlier this year ordered that the purge be stopped. The Wisconsin Institute for Law and Liberty (what a name!) appealed to the State Supreme Court, on which conservatives hold a 5-2 edge. But one of the conservatives is siding with the liberals on this one.

That makes three justices against the purge. If Karofsky wins this election, she’d make four. Those 200,000-plus would be eligible to vote. Donald Trump beat Hillary Clinton by 23,000 votes in the state, or .7 percent.
So that’s how they do it. Over a period of years. The gerrymandering started in 2011. The voter purge effort started back then, too, under Scott Walker. It already worked in 2016, when turnout in the state was the lowest since 2000. The sharpest decline was in the city of Milwaukee, as Ari Berman reported in Mother Jones, which Clinton carried with 77 percent of the vote but where, oddly, 41,000 fewer people voted than in 2012. Some coincidence!

And now, because of course any event is an excuse to introduce more chaos and corruption into the process, they added a Stage Four—use the pandemic as cover for voter suppression. Did you see that disgusting footage of Assembly Speaker Robin Vos, PPE’d up like a Queens County surgeon, saying “you are incredibly safe to go out”?



How can this man live with himself? He’s urging people to risk sickness and death, for starters, but that isn’t even the worst of it. The worst of it is that it’s all a charade. He’s trying to get people to believe that he supported holding the election because it’s safe, not because of the real reason, which everyone knows anyway, that he wants a state high court justice who’ll bar black people from voting.

Of those 19,000, some will get sick because they went out yesterday. Some may even die. But let it not be said that they died in vain! They died so Donald Trump could steal an election.

That is what he’d going to do this fall, or try to do. Guaranteed. Cheating is in his nature, so he’d do it even if he didn’t have to, because he’s cheated virtually everybody he’s ever interacted with in his life. And the Republicans cheat because they know they have to cheat to win.

And now they turn their sights on vote by mail. Here’s Trump, Wednesday morning:

Donald J. Trump

✔@realDonaldTrump

Republicans should fight very hard when it comes to state wide mail-in voting. Democrats are clamoring for it. Tremendous potential for voter fraud, and for whatever reason, doesn’t work out well for Republicans. @foxandfriends

145K

8:20 AM - Apr 8, 2020

Twitter Ads info and privacy

So the order has gone out. Fox will rant about how voting by mail is corrupt and leads to fraud, and everyone else will follow. It’s not true overall, but there have been scattered problematic incidents, and as we know all too well, that’s all Fox needs: one incident. And of course it’s the perfect Trumpy touch that he himself voted by mail last month. It’s the ultimate “fuck you” gesture, an exquisite troll of the libs.

The Supreme Court will be in on it, too. Never forget that part. The Court’s ruling Monday night was legally narrow, but its real message was this: We’ll rule however we have to rule to make sure Republicans keep power. If we have to limit voting, we’ll do that. If we have to extend voting, we’ll do that too. And we’ll issue it per curiam, so none of us has to put our names on it (Bush v. Gore and the Wisconsin decision were both per curiam), and we’ll make sure to stipulate that it’s non-precedential and applies only to the current circumstance (also true of Bush and Wisconsin). On these matters, Roberts is as unprincipled as any of them. Don’t kid yourself about him.

If Trump steals this election, what will happen? I’d say I fear armed insurrection, but the anti-Trump people aren’t the ones with the guns. No—armed insurrection is far likelier if Joe Biden wins honestly, because Trump, Fox, and the Republicans will say it was stolen.

I don’t know how democracy survives these people. Piece by piece, they are dismantling it. It can happen here, folks. In fact, it’s happening already. 

Trump Is Counting on the Supreme Court to Save Him

The president’s remarkable lawsuit against his own accountants and bankers can succeed only if the conservative majority intervenes on his behalf.

MARCH 7, 2020

David Frum

Staff writer at The Atlantic

FABRICE COFFRINI / AFP VIA GETTY

Sometime before June 29, 2020, the U.S. Supreme Court will either plunge the United States into the severest constitutional crisis of the Trump years—or save Americans from that crisis.

Three different committees of Congress, as well as New York State prosecutors, have issued subpoenas to President Donald Trump’s accountants and bankers for his tax and business records. Trump has sued to stop the accountants and bankers from complying. He has lost twice at the district-court level and twice at the appeals-court level. Now he is looking to the conservative majority on the Supreme Court to rescue him.

On March 31, the court will hear oral arguments in the cases of Trump v. Mazars and Trump v. Deutsche Bank. The decision will be rendered sometime between then and the court’s summer break.

Although Trump is suing his accountants and his bankers as a private citizen, his case has been joined by the Department of Justice. Solicitor General Noel Francisco has signed an amicus brief on behalf of the United States. It is an astonishing document. It invites the Supreme Court to junk two centuries of precedent—and to substitute an entirely new system of judicial review of congressional subpoenas that involve a president.

A legislative subpoena must therefore satisfy heightened requirements when it seeks information from the President. At the threshold, the full chamber should unequivocally authorize a subpoena against the President. Moreover, the legislative purpose should be set forth with specificity. Courts should not presume that the purpose is legitimate, but instead should scrutinize it with care. And as with information protected by executive privilege, information sought from the President should be demonstrably critical to the legislative purpose. A congressional committee cannot evade these heightened requirements merely by directing the subpoena to third-party custodians, for such agents generally assume the rights and privileges of their principal, as this Court has recognized in analogous cases.

All the requirements in that above paragraph were devised for purposes of this litigation. None of them has ever been enforced—none of them has ever been imagined—in the previous 230 years of skirmishing between Congresses and presidents. Every must and should and cannot was invented in this very brief, for the immediate legal purposes of this president in this dilemma. The solicitor general might as well have said that subpoenas must be delivered by a sled pulled by flying reindeer, for all the connection between these demands and the previous constitutional history of the United States.

As the House of Representatives noted in the brief it filed, previous Congresses have obtained the bank records of Presidents Andrew Johnson and Jimmy Carter, and the tax records of President Richard Nixon. They have read the diaries of President Ronald Reagan and the law-firm billing records of first lady Hillary Clinton.

It’s never before been the law that a subpoena of the president must be authorized by “the full chamber,” much less that this authorization be “unequivocal”—whatever that means.

It’s never before been the law that the president’s privileges—whatever they are—also extend to his private business agents.

It’s never before been the law that the courts set themselves over Congress as scrutinizers of its subpoenas, approving or disapproving. Until now, instead, courts have always extended the utmost deference to congressional investigations, from the first Washington administration onward.

The Trump administration cannot cite case law for any of its new demands. It quotes few cases, very briefly and tangentially, and strikingly often with ellipses in the middle of the quote. Instead, it bases its argument on its own vision of the awesome and unassailable power of the presidency. “The President faces a unique risk of harassment in response to his official policies or actions,” his lawyers argue. To heighten that risk, they quote the 1952 case involving President Harry Truman’s seizure of steel plants during the Korean War: “In drama, magnitude and finality [the president’s] decisions so far overshadow any others that almost alone he fills the public eye and ear.” They continue, this time quoting the Supreme Court’s language in the Paula Jones lawsuit against President Clinton: “Likewise, the President ‘occupies a unique office with powers and responsibilities so vast and important that the public interest demands he devote his attention to his public duties.’”

The history-minded reader will recall that Truman lost the steel-seizure case, and that Clinton likewise lost his fight to be immune from civil liability for sexual harassment. Oftentimes, such effusive compliments to the office of the presidency in the language of a Supreme Court decision serve as consolation prizes for some rebuffed claim of presidential power. But Trump’s Department of Justice deploys the compliments as if they constituted the law itself, not the wrapping paper around the law.

The House brief hits back with actual precedents from pertinent law—and this bottom line: “In more than twenty cases concerning the scope of Congress’ power to investigate, this Court has only once held that a Congressional inquiry exceeded its constitutional limits.” That case—Kilbourn v. Thompson—dated from 1880 and dealt with the aftermath of the bankruptcy of a big bond house, J. Cooke and Sons. And even that case was effectively overruled in 1962. “At most,” the Supreme Court said, “Kilbourn is authority for the proposition that Congress cannot constitutionally inquire ‘into the private affairs of individuals who hold no office under the government’ when the investigation ‘could result in no valid legislation on the subject to which the inquiry referred.’” But otherwise, as the Supreme Court held in 1951, for a court “to find that a committee’s investigation has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested” elsewhere.

All told, the record supports the dry opening of the House brief: “Many momentous separation-of-powers disputes have come before this Court,” it reads. “This dispute, regarding four document subpoenas to third parties for records not covered by any privilege, is not one of them.” The only thing remarkable about the Mazars and Deutsche Bank cases, the House adds, “is the extraordinary breadth of the arguments that President Trump and the Solicitor General make about the supposed power of a President to thwart investigations in furtherance of Congress’s Article I legislative and oversight functions."

By all rights, these cases should end in the kind of defeat for Trump nicely described by a favorite joke of Chief Justice John Roberts. When asked how a certain case could have been decided against a petitioner 9–0, Roberts is said to have replied: “You must remember, there are only nine justices on the Supreme Court.”

But this is the Trump era. The courts are partisan and getting more so. Although Trump lost every previous round of this litigation, one appellate judge did agree with him on the merits: his own appointee to the D.C. Circuit, Neomi Rao.  

In her dissent from the majority opinion against Trump, Rao advanced an arresting new claim: “When Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose … Allegations that an impeachable official acted unlawfully must be pursued through impeachment … [and] cannot be investigated by Congress except through impeachment.”

This is wild talk that would shut down almost all congressional investigations. It asks that Congress decide whether an act was unlawful before it begins its investigation of that act. It’s an argument that cannot be applied in real life—and is probably not meant to be applied in real life beyond this one and only application: shutting down an unwanted investigation of President Trump.

Plainly, there is something in those documents that Trump dreads letting the world see. We now seem on track to one of three possible outcomes of this dispute.

The first is that precedent and law prevail. Trump loses his lawsuit against his accountants and bankers, and the subpoenaed documents are surrendered to Congress.

The second is that the political imperative to save Trump that swayed Rao will sway the conservative justices on the Supreme Court—and that Trump’s secrets will be protected by a 5–4 decision.

The third is that Trump loses—but continues to devise new delays to thwart the subpoenas and defy not only Congress but also the courts.

Every one of these possible outcomes leads to explosive controversy in the summer before the 2020 election.

In the first case, we are surely plunged into a screaming hurricane of Trump scandals.

In the second, the legitimacy of the Supreme Court will be called into doubt in a way not seen in decades, if ever.

And in the third, we confront a full-blown crisis of the rule of law.

Under all three scenarios, the issues raised by impeachment in early 2020 come roaring back for the election finale. Trump’s evident corruption, the questions over his thralldom to the Putin regime in Russia, the refusal of the Republican Party to uphold law when inconvenient to Trump—you thought we’d talked them to death during impeachment? There is so much more to come.

THE SUPREME COURT: ROBERTS MAINTAINS THE BALANCE. OR SLANTS IT.

WASHINGTON POST

DAVID COLE, NY REVIEW OF BOOKS

JOHN PAUL STEVENS | 1920-2019

John Paul Stevens, Liberal Champion of the Supreme Court, Dies at 99

• In his 35 years on the Supreme Court, he improbably transformed from a Republican antitrust lawyer into the ardent leader of the court’s liberal wing.
• His notable opinions included the 2006 decision that repudiated the plan to put Guantánamo Bay detainees on trial by military commissions.

NY TIMES


JEFFREY TOOBIN, NEW YORKER