A Captured SCOTUS

A lot of the tradecraft of covert operations was used as they stealthily crept up to and captured the Supreme Court and now instructed in what it is that they wish to get done. And so I think once people have those two thoughts in mind that this is a captured court, not a conservative court, and that the manner in which it is captured is akin to an intelligence type covert operation, then you can begin to think about what the solution is. Once you’ve identified the illness, you could begin to think about the cure.

Senator Sheldon Whitehouse
Amicus – Religious Liberty and the Right to Vacation in Jackson Hole – NOV 23, 2022

The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court by Sheldon Whitehouse

If you want to understand the magnitude of the problem of the captured SCOTUS, you need look no farther than the next case on the docket for the SCOTUS:

Amicus – The Blockbuster Case That You Probably Haven’t Heard About – DEC 03, 2022

As Hila Keren points out repeatedly in that episode, the principal that should be at the heart of this case is that the marketplace must remain open, not subjected to every single little objection that can be thrown up by various believing parties who come to the marketplace and want their beliefs to be honored without question while participating in the market.

The SCOTUS shouldn’t even be hearing this case because there is no real case to be heard here. There is no one who wants a website made by the plaintiff because the plaintiff doesn’t even offer that service in the first place. It is a case crafted to be heard by this SCOTUS; a SCOTUS that has been put in place by the very same people who crafted this case. This entire scheme is improper and should be derailed before these people make a mockery of our entire system of justice.

Monuments to the Unthinkable

What I think is helpful is not to conflate these two things or not to suggest they are the same, but to put them in conversation with one another so that we can learn about them, so that I can think about what it means that Angola prison in Louisiana – the largest maximum security prison in the country where 75% of the people held there are Black men and 70% of them are serving life sentences – what does it mean that that is built on top of a former plantation?

I’ll always remember my trip to Dachau and standing in Dachau and seeing this sort of vast expanse of gray land. Look to your left – you see the remnants of the crematorium. You look to your right – you see the remnants of the barracks. And I close my eyes and I imagine what it would be like if; on that land, they built a prison. And in that prison, the vast majority of the people held there were Jewish.

I couldn’t even finish the thought exercise because it was so viscerally upsetting. It was so absurd. It would be such a horrific, inexcusable manifestation of antisemitism.

…And yet here in the United States, the largest maximum security prison in the country in which the vast majority of people are Black men serving life sentences, many of whom work in fields, picking crops for pennies on the hour – what does it mean that that place is built on top of a former plantation? The failure of American memory around chattel slavery allows a place like Angola to exist in a way that a more direct confrontation with memory in Germany would never allow a similar space in Germany to exist in the same way.

Clint Smith
NPR – Fresh Air – ‘Monuments to the Unthinkable’ explores how nations can memorialize their atrocities – December 1, 2022

youtubemuseumandmemorial.eji.org

It is the very act of attempting to remember that becomes the most powerful memorial of all.

The Atlantic/Clint Smith
How the Word Is Passed: A Reckoning with the History of Slavery Across America – June 1, 2021 by Clint Smith 

Maddow on Pat Buchanan & Racism

Buchanan is a paleoconservative, he is a white nationalist, he is an artist of white racial grievance as a driver of white working class votes and white middle class votes, honestly; and he has been calling for revolutionary white nationalist politics on the right consistently and in the same way without evolving at all himself from the sixties until now, through his most recent books.

The far right has figured that out. His books are required reading in the pro-Trump right wing paramilitary groups, some of which are facing sedition charges now; but he’s the most consistent, lyrical Republican racist of the mid-twentieth century and the start of the twenty-first and that will be important for us understanding what happened to the right and to the Republican party in this century.

I think it helps to look at it from a broad historical perspective and just to realize that these impulses and these arguments and these ideas of racial grievance and racial reorganization, and racial oppression, they don’t go away and they don’t change very much. They get articulated with more or less flowery language over time but, when you build the Nixon-Agnew administration on the idea that the civil rights movement is a bunch of communists and it’s American patriotism to oppose communists and therefore to oppose civil rights; and that’s why anyone who calls you a racist is really a commie…

When that’s the politics of the sixties and seventies and there is no corrective for it, you just evolve through it. When the Reagan politics around race and welfare queens and this idea again of exploiting racial grievance, but with a smile, persists through those times. When the deep racial radicalism on the right is sort of kept alive, is continually stoked, those guys are continually fomenting what they foment and they fall in and out of favor depending on what the media environment and the electoral environment can tolerate.

Rachel Maddow
spotifyEzra Klein – What Rachel Maddow Has Been Thinking About Offscreen – Oct 14, 2022

What she is driving at there is the thing that put me off on Pat Buchanan from the very beginning:

The problem that I had with Pat Buchanan was always that the thing he was talking about wasn’t the thing he was talking about. What I expressed to Dan Carlin as bad actor or bad faith in relation to his interview of Pat Buchanan in episode 71 of his Common Sense podcast. Buchanan would never come right out and say that brown-skinned people were keeping white people from achieving their white nirvana, but it was behind every single thing he thought and said and it bled through in every thought that he tried to express. He always was a bad liar. Not nearly the confidence man that Caudito Trump is. Trump, who took the racist subtext behind politics in the US and made it the text again. Pat Buchanan helped make a Trump presidency inevitable.

This racial thinking comes out in his belief that Slavic countries belong to Russia, for example.

The title of that article? That is the framing that Pat Buchanan would use when talking about the war in Ukraine. Talking about it as if all Slavs must be under the same government. Racial framing. Just in case you think that Rachel Maddow is making all that shit up. She knows him, which is more than I can say about him.

The Cruelty is the Point

If you are an ambitious Republican, the way to win a primary, the way to win office, is to be seen being ritualistically cruel in some way to one of these communities that conservatives are fixated on and to have that covered by FOX News who will then rave about what a true conservative you are.

This act of public cruelty is something that draws lines of community around one group of people and excludes another group of people in a way that really forms a relationship between a leader and the people he’s seeking to represent.

This is something primal in human nature. You think back to adolescence when there’s a kid who, he’s a little nerdy or he gets left out of the group and gets made fun of, and there are other kids who will pick on that kid just to show they are one of the other kids, one of the cool kids, one of the group.

This is something that’s in human nature that Trump elevated to a level of political virtue or a political principle.

Adam Serwer (wnycstudios.org/takeaway)

Constitutional Reverence

Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects.

…But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.

Thomas Jefferson, 3rd US President (1743-1826)

h/t to Eric Buck

The reverence for the founders is at once misplaced and well earned. Any number of people could produce a better document now than they could then; what is a shame is that most of those people are not to be found in government.

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Choosing Leaders

Choose your leaders with wisdom and forethought.
To be led by a coward is to be controlled by all that the coward fears.
To be led by a fool is to be led by the opportunists who control the fool.
To be led by a thief is to offer up your most precious treasures to be stolen.
To be led by a liar is to ask to be told lies.
To be led by a tyrant is to sell yourself and those you love into slavery.

Octavia E. Butler, Parable of the Talents (Earthseed, #2)

Political Participation

Yeah, I know we all have important professional lives and personal lives, and it’s a sacrifice to get involved in these civic things that I’m talking about. But there’s joy to be found in that if you dedicate an hour or two a week to do something that is going to make this democracy better, stronger, something of a civic nature. It’s not going to necessarily be easy, but you’re going to feel better about yourself at the conclusion of that week. And in fact, our democracy is going to be stronger. There is joy to be found in this struggle, and that is what people should not forget.

Eric Holder
Amicus – Eric Holder’s Supreme Court Protest – JULY 16, 2022

Our Unfinished March: The Violent Past and Imperiled Future of the Vote-A History, a Crisis, a Plan by Eric Holder

WE BEAT TRUMP, NOW LET’S SAVE DEMOCRACY

Real Checks and Balances With a SCOTUS That is a Political Actor

This is what the court has been building over the last several terms is a pretty novel and historically unprecedented approach to the rights secured in the Constitution; which is that there are certain rights which are first class rights or top tier rights; and other rights which, if they exist at all, are really lower level, less important rights.

We’ve seen a kind of layering, particularly the end of this term, of the vulnerability of women and other people who could be pregnant, seemingly invisible to the Constitution, and the vulnerability of white men being hyper visible to the Constitution and gun rights and religious liberties are going to come to the rescue. This kind of tiering of rights is something new, and it’s certainly not something that the framers, even if that was where we wanted to anchor the meaning of these rights, had in mind, I think, in creating an ecology of rights among all of the rights that are secured in the Constitution, in ways that doesn’t elevate any other over any others.

Katherine Franke James L. Dohr Professor of Law at Columbia University

Why do people listen to us when we decide that the 14th Amendment requires one thing or another thing? Because it’s not necessarily the text. You know the text of the 14th Amendment or any other amendment in the Constitution is so vague. Like “Congress shall make no law” in the First Amendment. Yet Congress makes all sorts of laws that restrict speech or religion. So it’s not just the text, it’s what makes the court’s opinion better than others. And the court’s answer in Casey is it uses the term legitimacy and it says the court’s power lies in its legitimacy, which it defines as “…a product of substance and perception that shows itself in the people’s acceptance of the judiciary as fit to determine what the nation’s law means and to declare what it demands.” And what the court meant by that was; the reason why the court has power is because people think what the court does is engage in principled decision making. And to the extent that the public did not think that the court engages in principal decision making, they wouldn’t take it seriously.

All of the rules that you are describing, all the precedents that you are quoting is just cover for what we all know you’re going to do because you’re Sam Alito, and so to the extent that the court thinks we’re just going to automatically assume there’s a difference between an opinion like Dobbs and Mitch McConnell’s press release. I think that’s an unwarranted assumption, but it’s a cultural one and it’s a cultural force of the court’s power. And so what I am drawing optimism from at this moment is the extent to which members of Congress and the public are looking at these opinions and saying, you know, it’s not like the Constitution demands these outcomes. It’s not like these are the only outcomes you can think of.

In fact, the court is overruling itself, reaching alternative conclusions. And so we don’t have to live in a system in which children are getting shot every day. And we can’t do anything about climate change. And people are forced to birth when they don’t want to. Like all of these things, we don’t have to live in this system just because the court says so. And so the court is not worried about that, but I think it should be.

I think one notable thing about the court is for all of its contempt of Congress, almost every decision that it issued this term could be reversed by a simple statute passed by a majority of both Houses. So, Congress could in effect reverse Dobbs by enacting the Women’s Health Protection Act or a stronger version of it. The Supreme Court allowed Oklahoma and every state to regulate tribes by exercising enforcing its criminal law in Indian country. Congress could just pass a law saying, no, that was wrong. Please try again. The court harmed the EPA’s ability to regulate climate change. Congress could enact legislation to say that was a mistaken interpretation of our statute. The court reinforced qualified immunity this term. Congress could abolish qualified immunity and say “if you’re a police officer and you shoot somebody, you can go to court so that they can recover some damages for their loss of life.” Basically, everything the court did this term can in theory be limited by a statute. Even the decisions that reinforce gun rights or religious liberty could be modified by Congress, especially a Congress motivated enough.

But I think that that risk, the risk that Congress is going to pass bad laws, is a risk that in a democracy we have to take. We have to take the risk that in a democratic legislature, it’s going to enact laws we do not like. Instead, we have this system where we’re so fearful of what Congress might do that we have basically every possible veto we can think of; far more than every other country on the planet in terms of how difficult it is for the national legislature to pass laws. No other country basically requires a supermajority in one house, a second house, in a bicameral legislature, a Presidential veto followed by this Judicial veto afterward, which is just absurd.

It makes it really, really hard, and we do not expect anything to come out of our national legislature, and that’s what I think we need to get rid of. We need to start electing folks who are actually capable of legislating. We need to require that our president and the presidential administration not simply say, well, I guess if the Supreme Court said that this is the rule. So long as the Supreme Court is a Supreme Court, we have to listen to them. But rather like Abraham Lincoln 150 years ago saying, yeah, the court’s the court, but I represent the American people and I’m not going to tolerate this interpretation of our fundamental law. And so there’s obviously a political problem in that.

I certainly do not expect this Congress to legislate. There’s a cultural problem in a sense that most people think the Supreme Court should have the final word on what the Constitution means. But those are the two problems to focus on the political problem of building power through local organizing, through movement building, to demand a legislature that’s capable of legislating, and then a cultural problem of saying, look, Congress or the national legislature, for good or for ill, should have the final word on these questions in a democracy, because leaving it to the court is a terrible idea for a country that calls itself democratic.

Nikolas Bowie, Louis Brandeis professor of law at Harvard Law School

we should be ringing the alarm about this case Moore v Harper I think every day from now until it’s decided because the independent state legislature theory is one of the most radical and autocratic conceptions of democracy that this court has ever been presented with. And it really gives the court an opportunity to roll back some rights that many of us took for granted, including rights rooted in state constitutions.

Mark Joseph Stern
Amicus – A Supreme Court Term Like No Other – JULY 09, 2022

…as bad as this year has been for individual rights (if you aren’t a white guy) next year could be even worse, especially if we allow the Republicans to retake the House of Representatives and start the steamroll process that will bring back a President Trump in 2024. you have all been warned.

In Bush v. Gore in 2000 John Roberts, Amy Coney Barrett and Brett Kavanaugh argued before the court, using the independent state legislature doctrine, that George Bush should be allowed to become President without the Florida Supreme Court dictated recount, when the margin of his victory was less than 500 votes. The Florida legislature had decided they wanted Bush as President, and that is what the State of Florida should do because the legislature has the last say on that subject.

They are now going to decide a case that they have a demonstrable conflict of interest in, Moore v. Harper. Their decision in this case is already known and because of their conflicts on the subject, should not be allowed to occur. There are things we can do to stop this, but we have to push our Representatives in Washington to do the work that now needs doing.

Congress can strip the court of jurisdiction. It can strip the court of its building. It can strip the court of its summer recess. It can strip the court of its clerks. It can say, if you want to strike down our democratic laws, do so yourselves rather than relying on these 24 year old’s. It can strip the court of its discretionary jurisdiction. It can strip the court of the power to enjoin laws. It can say ‘no more federal courts can enjoin national laws and a nationwide system without a supermajority of the Supreme Court.’ It can change the court’s jurisdiction. It can put the court’s jurisdiction in the D.C. Circuit.

Congress can do all sorts of stuff and in the past, Congress has done so. When Congress was worried about the court invalidating reconstruction, it simply took the case out of the court’s hand and said, ‘Court, you no longer have jurisdiction over these cases.’

The problem we’re facing now is a Congress unwilling to fight back, not a Congress incapable of fighting back. And I think the conflict is something that Congress needs to embrace.

Nikolas Bowie

Childhood Poverty

Democracies cannot persist with the kind of income inequalities that we have, and the lack of economic mobility that we have, forever. It is true that children have no lobbyists in Washington D.C. and that may be one of the reasons why; you know, I’ve been there on the floor late at night when people are breaking their back at the end of the year before they go home for the holidays, to make sure rich people’s tax cuts are extended, to make sure that tax cuts for the largest corporations are extended.

When it came to children living in this country, Washington just went home.

Senator Michael Bennet
The Economist – How did America find the answer to its child poverty problem — and then abandon it?

LAST YEAR it looked like America had found the solution to child poverty: spend more. The expanded child tax credit is thought to have lifted around 3.7m children out of poverty. But the legislation expired and rates shot back up. How did America find the answer to a long-running problem, only to abandon it?

The Economist (still looking for a gift subscription)

We are 38th out of the 41 industrialized countries in the world when it comes to child poverty. Parents cannot work and raise children, they have to either work or raise children. I know because I lived in a single parent household from the age of 14 until I found a decent job and moved out of my mother’s house. I raised her children because she was at work all the time. That was 1977-1983, the longest six years of my life.

We treat children like an afterthought here in the US. We certainly don’t spend the time or money to make sure that they are fed, housed, clothed and given access to the educations that they need to thrive. Children are the future and the future is everyone’s problem, not just the parent’s problem. If we had half a brain in this country, we’d be spending far more than what the child tax credit gave to the poor children of America.

Remember this when you go to the polls in November. Republicans and that wannabe Republican Joe Manchin put 3 million children back into poverty. Vote to get them out of poverty again.

Featured image: npr.org/child-tax-credit-poverty