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    How the US supreme court shredded the Constitution and what can be done to repair it | Laurence H Tribe

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    On 1 July 2024, the US supreme court, after an unconscionable half-year delay that it laughably described as “expedited” treatment, handed down Trump v United States, the immunity ruling placing American presidents above the law by deeming the president a “branch of government … unlike anyone else.” The court’s delay guaranteed that Donald Trump would face the electorate in 2024 without first confronting a jury of his peers instructed to decide, and thus inform voters, whether he was guilty of trying to overthrow the 2020 election.Famously, the English immigrant Thomas Paine advocated that we revolt against the Crown to form an independent country and frame a constitution to prevent the rise of a dictator “who, laying hold of popular disquietudes, may collect together the desperate and the discontented … [and] sweep away the liberties of the continent like a deluge”. To that end, Paine asked: “Where … is the King of America?” And he replied: “In America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”In the court’s majority opinion, Chief Justice John G Roberts, Jr betrayed that promise and the Constitution that embodied it. He pretended that granting lifelong immunity from accountability to the nation’s criminal laws didn’t place the president “above the law”. In majestic circularity, he announced that the “President is not above the law” because it is the law itself that implicitly contains that immunity, to preserve “the basic structure of the Constitution from which that law derives”.But the idea that we need an unbounded chief executive to make the separation of powers work is grounded neither in theory nor in experience and contradicts the axioms of checks and balances. Worse still, the court’s decision delivers not a genuinely unbounded executive but one bound by whatever limits the court itself invents as it fills in the gray areas in its anything but black-and-white ruling. So it’s an imperial judiciary this court delivers in the guise of an imperial executive, not surprising for a court that just last week dismantled the administrative state by substituting itself for the panoply of expert executive agencies in Loper Bright Enterprises v Raimondo.The three dissenting justices objected, without rebuttal by the majority, that no prior president has needed this novel immunity from generally applicable criminal laws to operate as “an energetic, independent executive”, an objective the court placed above all else. The majority professed worry about “an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next”. But it said nothing to justify that worry – or to explain how the newly concocted less-than-absolute shield of presidential immunity could hope to solve the problem it conjured. After all, if we elect presidents unprincipled enough to direct their attorneys general to persecute their predecessors on trumped-up charges of abusing their official powers, there’s nothing to stop them from fabricating purely private – and, under the court’s new rule, non-immune – crimes by those predecessors.Beyond those glaring flaws in the majority’s reasoning, Roberts snidely accused the three dissenting justices of “fear mongering on the basis of extreme hypotheticals” that neither the majority opinion nor either of the two concurring opinions troubled to refute.What to make of the majority’s confusing instructions to the court trying Trump for the federal crimes through which he is alleged to have sought to overturn the 2020 election and the lawful transfer of power for the first time in our history? Only Justice Amy Coney Barrett, partly concurring and partly dissenting, wrote in no uncertain terms what the majority should have made clear but didn’t: “The President’s alleged attempt to organize alternative slates of electors … is private and therefore not entitled to protection … While Congress has a limited role in that process, see Art II, §1, cls 3-4, the President has none. In short, a President has no legal authority – and thus no official capacity – to influence how the States appoint their electors.” The majority should’ve endorsed Barrett’s brisk conclusion: “I see no plausible argument for barring prosecution of that alleged conduct.”The majority also offered no cogent reason to disagree with Barrett that, “beyond the limits afforded by executive privilege”, the US constitution doesn’t “limit the introduction of protected conduct as evidence in a criminal prosecution of a President”. As she and the three dissenters persuasively argued, the constitution “does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable” even if it does immunize them from prosecution on the basis of those circumstances. Bribery, a federal crime, makes the point perfectly. It’s nonsensical to hold, as the majority does, that a president who performs an official act like issuing a pardon in return for a bribe may be prosecuted for the bribe but may prevent the jury from learning about the backroom presidential conversations surrounding the pardon. The majority’s rejoinder that the pardon itself may be introduced in evidence as an official record is no answer at all.Indeed, the whole journey on which the majority embarks is misdirected. As dissenting Justice Ketanji Brown Jackson argued, it’s “cold comfort” to learn that “the President is subject to prosecution in his unofficial capacity … like anyone else”, because the “official-versus-unofficial act distinction” is both “arbitrary and irrational, for it … is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire”. She is right that vesting the president with uniquely sweeping powers and duties “actually underscores, rather than undermines, the grim stakes of setting the criminal law to the side when the President flexes these very powers”.I’ll let others sort through the tangled puzzles the court has left in its wake absent meaningful guidelines for distinguishing between the various categories of presidential conduct it enumerates. My main takeaways from this shameful decision are three: first, there is a compelling need for supreme court reform, including a plan to impose an enforceable ethics code and term limits and possibly create several added seats to offset the way Trump as president stacked the court to favor his Maga agenda; second, we should start planning for a constitutional amendment of the sort I have advocated in the New York Times to create a federal prosecutorial arm structurally independent of the presidency; and third, we need a constitutional amendment adding to Article I, Section 9’s ban on titles of nobility and foreign emoluments a provision expressly stating that nothing in the constitution may be construed to confer any immunity from criminal prosecution by reason of a defendant’s having held any office under the United States – and a provision forbidding use of the pardon power to encourage the person pardoned to commit a crime that the president is unable to commit personally.Amending the constitution to address problems the supreme court creates needn’t take long. When the court prevented Congress from lowering the voting age to 18 in state along with federal elections in Oregon v Mitchell, it took under seven months for us to adopt the 26th amendment to repair that blunder. And the court can overturn its own egregiously wrong decisions quickly, as it did in 1943 when it overturned a 1940 ruling letting states force children to salute the flag against their religious convictions in West Virginia State Board of Education v Barnette. As Justice Felix Frankfurter once wrote: “Wisdom too often never comes, so one ought not to reject it merely because it comes late.” Trump v United States isn’t just unwise. It’s a betrayal of the constitution. Overturning it should be an issue in this November’s election.
    Laurence H Tribe is the Carl M Loeb University professor and professor of constitutional law at Harvard Law School More

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      New role for Amy Coney Barrett’s father inside Christian sect sparks controversy

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      Survivors of alleged childhood abuse inside the People of Praise, a secretive Christian sect that counts Amy Coney Barrett as a member, are voicing concerns that the supreme court justice’s father, who was recently promoted to a new role, may seek to block information about the group’s historic handling of sexual abuse becoming public.Barrett, a conservative justice who was appointed by former US president Donald Trump, has never publicly disclosed her participation in the covenant Christian community, which some former members have compared to a cult.Her father, Michael Coney, a Louisiana-based lawyer who worked for Shell and has been a longtime member of the PoP, was this month appointed to serve as the group’s new legal counsel. Coney is also taking the helm of a “consultation team” that, internal correspondence seen by the Guardian shows, has been dealing with “issues of concern” to the group’s 1,100 members, including “misuse of authority” inside the PoP, “lack of accountable leadership”, and “mistrust of the board”.Coney’s appointment is part of a broader shake-up inside the PoP, whose leadership has been consumed by a contentious debate over the legitimacy of the 2021 election of its current leader, Charlie Fraga. Known as the “overall coordinator”, Fraga has said the bitter fight has emerged as an “urgent threat to the unity of the community”.For survivors of alleged childhood sexual and physical abuse inside the PoP, Coney’s elevation is deeply troubling. PoP Survivors – as the group is known – has for years called for the PoP to be investigated and held accountable for its handling of historic claims of abuse. The Guardian reported last year that the FBI had interviewed several individuals who have alleged they were abused by members of the PoP, but it is not clear whether the FBI opened a formal investigation.In 2020, as allegations of abuse and emotional trauma began to emerge in press reports in the Guardian and other media outlets, the PoP hired the law firm of Quinn Emanuel Urquhart & Sullivan to conduct an “independent investigation” into sexual abuse claims on behalf of the PoP. The results of the investigation were never made public.PoP Survivors say the lack of transparency is unusual given how many organizations and institutions have – however reluctantly – released the results of such investigations in the past, including some Catholic Church dioceses. They worry that Coney could now have an outsized role in determining what may be released in the future.“Elevating Amy Coney Barrett’s father to a position where he can influence what goes public is a huge conflict of interest. It gives him the power to block information that might be embarrassing to her. Yet public scrutiny is exactly what’s needed in order to protect children in the group,” said a spokesperson for PoP Survivors, which has 55 members and is comprised of adults who grew up in the sect and are no longer affiliated with the group.Barrett has not been accused of wrongdoing. But at the time of her nomination to the supreme court, it was reported by the AP that the PoP had sought to erase all mentions and photos of her from its website before her meetings with lawmakers. It may have been an effort to shield Barrett from questions about the PoP’s extreme beliefs.The Guardian asked Fraga, the PoP overall coordinator, for a comment on the leadership controversy and survivors’ concerns over Coney’s promotion, but he did not respond to the request for comment.Barrett’s supreme court chambers did not respond to a request for comment.It is not only the survivor group that has challenged Michael Coney’s appointment.Nano Farabaugh, an active member of the PoP, sent a letter to the all-male board of governors on 9 January in which she called on the board to reject Coney’s appointment to replace PoP co-founder Paul DeCelles as the leader of the consultation team.In her letter, which was obtained by the Guardian, Farabaugh said the team had recently submitted its suggestions to the board about PoP’s “future direction”. It is not clear what the consultation group has proposed or whether those suggests are now being scrapped.Farabaugh said Fraga’s decision illustrated many of the concerns that were being aired by PoP members, including: “Misuse of authority, mistrust of the board, not being consulted on matters that directly affect women, not listening to men and especially the voice of women, lack of transparency, [and] lack of accountable leadership.”The PoP was founded in the 1970s as part of a Christian charismatic movement. In meetings, members are encouraged to share prophecies and speak in tongues. One former member said adherents believe God can speak through members to deliver messages, sometimes about their future.A PoP handbook states that members are expected to be obedient to male authorities, or group heads, and are expected to give 5% of their earnings to the group. Heads are influential decision-makers in members’ lives, weighing in on issues ranging from dating to marriage and determining where members should live.After a waiting period, members agree to a covenant – a lifelong vow – to support each other “financially and materially and spiritually”.The group has been criticized for endorsing discriminatory practices. Members who engage in gay sex are expelled, and private schools closely affiliated with the group – the Trinity Schools – have admission policies that in effect ban the children of gay parents from attending. Barrett has previously served on Trinity’s board of trustees.Single members are encouraged to live with other members of the community, including families with children, a practice that former members and adults who grew up in the sect say created opportunities for sexual abuse.Justice Barrett’s membership in PoP was first widely publicized in a 2017 New York Times report, which noted that Barrett’s membership in the “tightly knit Christian group” never came up in a Senate hearing to confirm her as an appeals court judge.
      For tips on this story please contact: Stephanie.Kirchgaessner@theguardian.com
      This article was amended on 29 January 2024 to correct a mistyped word. The word “coveted” was meant to be “covenant”. More

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      Mitch McConnell greatly damaged US democracy with quiet, chess-like moves | Gary Gerstle

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      Mitch McConnell greatly damaged US democracy with quiet, chess-like movesGary GerstleWhile Trump’s coup attempt may have failed, McConnell’s own machinations have proven highly effective The January 6 committee has now revealed how far Donald Trump was willing to go to prevent the peaceful and lawful transfer of power from his presidency to that of Joe Biden. Yet, his deadly serious attempt to upend American democracy also had a slapdash quality to it, reflecting Trump’s own impulsive nature and his reliance on a group of schemers – Rudy Giuliani, Mike Flynn, Sidney Powell, Roger Stone and John Eastman among them – of limited ability. It is not entirely surprising that Trump’s coup failed.Another brazen GOP action, however, has succeeded – this one engineered by the Senate minority leader, Mitch McConnell, whose chess-like skills of political strategizing put to shame Trump’s powerful but limited game of bluster and bullying. The act to which I refer is McConnell’s theft of Barack Obama’s 2016 appointment to the supreme court, a radical deed that has dimmed somewhat in public consciousness even as it proved crucial to fashioning a rightwing supreme court willing to overturn Roe v Wade and to destabilize American politics and American democracy in the process.This summer may be one of the most consequential in US democracy | Thomas ZimmerRead moreMcConnell is widely considered to be a cynic about politics, more interested in maintaining and holding power than in advancing a particular agenda. This is true up to a point. But it is equally true that McConnell has believed, for decades, that the federal government had grown too large and too strong, that power had to be returned to private enterprise on the one hand and the individual states on the other, and that the legislative process in Washington could not be trusted to accomplish those aims. Hence the critical role of the federal courts: the federal judiciary, if sufficiently populated by conservative jurists, could constrain and dismantle the power of the federal government in ways in which Congress never would. It was fine, in McConnell’s eyes, for Congress to be paralyzed and ineffectual on most domestic issues, as long as the GOP, when in power, stacked the federal judiciary and the supreme court with conservative judges and justices. Thus, across Trump’s presidency, McConnell pushed 175 district court appointments and 54 court of appeals appointments through the congressional confirmation process, far exceeding in numbers what Obama had managed during the second term of his presidency.The supreme court, of course, was the biggest prize of all. The GOP had failed for 30 years to fashion a court to its liking, largely, it believed, because too many of its appointees – Sandra Day O’Connor, David Souter, Anthony Kennedy, and even John Roberts – had gone “rogue” on key issues: gay rights, gay marriage, affirmative action, Obamacare and, most of all, abortion. McConnell was worried that the GOP would fail again, this time under his watch as majority leader. Hence his willingness to steal an appointment that by historical practice and precedent belonged to Obama.The tale of McConnell’s steal begins in February 2016, when Associate Justice Antonin Scalia, the lion of the judicial right, suddenly and unexpectedly died. Obama had just begun the last year of his presidency, and McConnell was entering his second year as Senate majority leader. McConnell immediately declared that he would hold no hearings on a new supreme court justice, regardless of whom Obama nominated. McConnell’s ostensible justification: it was inappropriate, he declared, for a president on his way out of office to exercise so profound an influence on America’s political future. Let the next president, to be elected in November 2016, decide who the nominee should be. That way forward would, McConnell argued, be a way of letting “the people”, through their choice of president, shape the supreme court’s future.Obama nominated a centrist (and distinguished) jurist, Merrick Garland, in the hopes that it might soften McConnell’s and the GOP’s opposition. McConnell would not budge. He behaved as though no nominee had been put forward, allowing both Garland and Obama to twist in the wind across eight long months. We know the rest of the story: Trump won in November and nominated Neil Gorsuch to fill Scalia’s seat. Gorsuch was an arch-conservative jurist vetted by the Federalist Society. Knowing that he would be unable to secure the 60 votes necessary to bring closure to debate on the nominee, McConnell blew up the filibuster requirement for supreme court justices. Gorsuch was then confirmed (54-45) on the Senate floor.Technically, McConnell had violated no laws. The Senate, by simple majority vote, has the authority to remove the filibuster from virtually any issue at any time. With regard to supreme court nominations, the constitution simply states that the president has the power to nominate justices and that the Senate’s advice and consent are required for confirmation. Still, McConnell’s refusal to authorize any action on Garland broke with 150 years of senatorial precedent and practice. The Senate had rejected nominees in the past, but only after debate and a vote. Some who were told they had little chance of winning such a vote had voluntarily withdrawn their names. A few had seen their cases deferred for a few months. But the last time a nominee was made to suffer Garland’s fate – consigned indefinitely to purgatory – was 1866. And that ancient case had a plausible justification that the Garland case did not: the nomination had come from a president – Andrew Johnson – on his way to impeachment and possible removal from office.McConnell’s action was a calculated gamble. In early 2016, he did not know who or how strong the Republican nominee would be. But he regarded Hillary Clinton, the likely Democratic nominee, as vulnerable and beatable. And he expected his defiance of Obama on a supreme court nomination to fire up the GOP base. The stakes of the battle made the substantial risk worthwhile. McConnell distrusted Chief Justice Roberts because of the latter’s critical role in preserving Obama’s Affordable Care Act – another example, in the majority leader’s eyes, of a GOP-nominated justice going “rogue”. A Garland appointment might well have strengthened the centrism of the court, which is where Roberts wanted the power of his court to lie. McConnell wanted a court that would resist that drift, even if it meant breaking with a time-honored senatorial precedent. The end – a “truly” conservative court – justified the means.Imagine, for a moment, that McConnell in 2016 had followed precedent and held hearings for and a vote on Garland. The moderate Garland might well have been approved and become Scalia’s replacement. Let’s presume, for the sake of argument, that the next two appointments went as they did: Brett Kavanaugh replacing the retiring Anthony Kennedy in 2019 and Amy Coney Barrett replacing Ruth Bader Ginsburg when the latter died in 2020. Had this scenario prevailed, the court would have entered its 2021-2022 term with three progressives (Stephen Breyer, Elena Kagan, and Sonia Sotomayor), one moderate (Garland), and five conservatives (Clarence Thomas, Samuel Alito, Roberts, Kavanaugh and Barrett).This hypothetical court may well have declined to overturn Roe v Wade. Two of the votes that Samuel Alito needed to assemble his majority in the 2022 case repudiating Roe (Dobbs v Jackson Women’s Health Organization) were weak ones: Roberts and Kavanaugh. Roberts astonishingly admitted in his concurrent opinion that he thought it wrong to use Dobbs to overturn Roe, even as he was voting to do so. Kavanaugh, meanwhile, laced his own concurrent opinion with the anguish of someone deeply troubled by the affirmative vote for a Roe reversal that he, too, was casting.What if Garland was sitting on this court rather than Gorsuch? Roberts, still in command of this court, may well have cobbled together a coalition to preserve Roe. He might have pulled a conflicted Kavanaugh to his side, and he might have worked out a deal with the court’s progressives (and probably Garland as well) similar in spirit to the one that Sandra Day O’Connor had engineered in Planned Parenthood v Casey (1992): jurisprudentially messy but workable as a compromise between America’s warring tribes. Were Garland sitting on this court, in other words, women in America today would still have a constitutionally protected right to reproductive freedom.McConnell could not have foreseen in 2016 the particular way in which a majority of justices would coalesce in 2022 to overturn Roe. But his actions then were designed to lay the foundation for this sort of outcome. He resolved long ago that he would allow no principle to stand in the way of his pursuit of a rightwing court. Thus, in October 2020, he did not hesitate to abandon the arguments he made in the Garland case to jam through the Senate Amy Coney Barrett’s confirmation, even though Trump was much closer to the end of his presidential term than Obama had been to his in 2016. The ends – a rightwing court –justified the means.McConnell’s machinations broke no laws. His 2016 supreme court steal, however, upended a century and a half of accepted senatorial practice. The price for the country has been high: damage to the court’s legitimacy, deepening cynicism about Washington politics, and a growing conviction that America’s ailing democratic system can’t be fixed.
      Gary Gerstle is Mellon professor of American history emeritus at Cambridge and a Guardian US columnist. His new book, The Rise and Fall of the Neoliberal Order: America and the World in the Free Market Era, will be published in April
      TopicsUS newsOpinionUS politicsUS supreme courtMerrick GarlandRuth Bader GinsburgAmy Coney BarrettBrett KavanaughcommentReuse this content More

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      To protect the supreme court’s legitimacy, a conservative justice should step down | Lawrence Douglas

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      OpinionUS politicsTo protect the supreme court’s legitimacy, a conservative justice should step downLawrence DouglasIf presidents do not get to replace justices in an election year, then Coney Barrett’s confirmation is illegitimate; if presidents do, then Gorsuch’s is illegitimate. You can’t have it both ways Tue 21 Sep 2021 06.15 EDTLast modified on Tue 21 Sep 2021 06.19 EDTIn Planned Parenthood v Casey, a landmark decision from 1992, the US supreme court memorably noted that its “power lies … in its legitimacy”. If the people come to question the court’s legitimacy, they will cease to accept the “the Judiciary as fit to determine what the Nation’s law means and to declare what it demands”.It appears that Justices Clarence Thomas and Amy Coney Barrett share these worries. In separate remarks this month, both justices sought to assure the public that, in Coney Barrett’s words, “this court is not comprised of a bunch of partisan hacks”. Thomas said much the same, seeking to disabuse his listeners of the belief that justices “are just always going right to [their] personal preference”.Triggering the justices’ concerns was the withering criticism that has been directed at the court’s recent decision to leave in place, at least for now, a Texas law that turns ordinary citizens into de facto bounty hunters empowered to sue anyone who performs or “aids and abets” an abortion for a woman past her sixth week of pregnancy. The Texas law cannot be squared with the court’s ruling in Planned Parenthood, which recognized that a “woman’s right to terminate her pregnancy before viability … is a rule of law and a component of liberty we cannot renounce”. To renounce that principle, the court warned, would cause “profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law”. But that is precisely what the court did in letting Texas’s transparently unconstitutional law take legal effect.But far from recognizing or examining their own role in contributing to the erosion of the court’s legitimacy, the two justices turned to other precincts to assign blame. It’s the media, Thomas whined, that are “destroying our institutions” – this from a justice who dissented from the court’s refusal to hear Trump’s challenge to a Pennsylvania state court decision that extended the deadline for the receipt of mail-in ballots by three days. Thomas acknowledged that the volume of mail-ins at stake had no material bearing on the outcome of the Pennsylvania race; all the same, he was prepared – in a stunning display of either partisanship or tone-deafness – to have the supreme court, scant weeks after the 6 January insurrection, offer tacit support to Trump’s attack on the 2020 election results. And, in now blaming the media for the court’s self-inflicted wounds, Thomas is effectively echoing Trump’s toxic rhetoric about “fake news”. Who is the institution-destroyer here?Alas, Justice Coney Barrett joined Thomas in attacking the press. The media, she charged, makes decisions such as the Texas case “seem results-oriented”. It is worth noting that the justice made her remarks at the McConnell Center at the University of Louisville, with Senator Mitch McConnell, the center’s namesake, in attendance. It was McConnell, of course, who in the wake of Ruth Bader Ginsburg’s death six weeks before the 2020 election, pushed through Coney Barrett’s nomination, in transparent violation of the very justification he had offered four years earlier to deny President Obama the right to name a justice to fill a court vacancy that ultimately went to Neil Gorsuch. That McConnell’s cynical manipulation of the rules was designed to compose a court that would produce dependably conservative results appears lost on Coney Barrett. Indeed, it was her vote that was determinative in the Texas case. Had Ginsburg still been on the court, the decision would have gone 5-4 the other way. McConnell secured the results he wanted.If Coney Barrett were genuinely concerned with promoting the court’s legitimacy, she might consider resigning. Or rather, she and Gorsuch might agree to flip a coin to decide who should leave the court. If presidents do not get to replace justices in an election year, then Coney Barrett’s confirmation is illegitimate; and if presidents do get to replace, then Gorsuch’s confirmation must be illegitimate. You can’t have it both ways – not if you believe that the composition of the court should be the product of a principled process.Coney Barrett appears to willfully overlook the fact that she has been elevated to a rarefied position through a tarnished process that will taint all decisions in which her vote plays a crucial role. And just as we might hope that a person who, through no fault of their own, has come into possession of a good not rightfully theirs, would return that object, Coney Barrett and Gorsuch could do the right thing for the nation by agreeing that one of them should step down.Clearly, this isn’t going to happen. Yet it would powerfully bolster the legitimacy of a court the very composition of which smacks of illegitimacy.
      Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College
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      Amy Coney Barrett says the supreme court aren’t ‘partisan hacks’. Oh really? | David Sirota

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      OpinionUS politicsAmy Coney Barrett says the supreme court aren’t ‘partisan hacks’. Oh really?David SirotaNever mind the court’s wildly rightwing bent and secretive ‘shadow docket’ – or Barrett’s refusal to recuse herself from a case involving a fossil fuel giant that employed her father Wed 15 Sep 2021 06.19 EDTLast modified on Wed 15 Sep 2021 12.47 EDTWar is peace, freedom is slavery, and the supreme court is a dispassionate nonpartisan branch of government free of bias – this is the Orwellian fable that Justice Amy Coney Barrett is now asking Americans to believe.And Barrett is asking us to believe it not merely after the court’s wildly partisan ruling on abortion rights, but also just months after she promoted climate denialism to a national audience and refused to recuse herself as she helped secure a legal victory for the fossil fuel giant that employed her father for decades.This is a tale not just of cartoonish hypocrisy but also of deception – a frantic attempt to prevent more of the country from realizing the court is a corporate star chamber that has become one of the most powerful partisan weapons in American politics.First, the blatant hypocrisy: in an event that seems torn out of the pages of the Onion, Barrett this weekend appeared with the Senate’s Republican minority leader Mitch McConnell at a celebration of a University of Louisville facility he named after himself. After she was introduced by the most partisan Senate leader in American history, Barrett declared that the supreme court – which now includes three people who worked directly on the Republican campaign to pilfer the 2000 election – “is not comprised of a bunch of partisan hacks”.If that wasn’t absurd enough, Barrett then declared that judges must be “hyper vigilant to make sure they’re not letting personal biases creep into their decisions, since judges are people, too”.That demand for ethical vigilance came less than four months after Barrett discarded her own past recusal list and opted to participate in the adjudication of a major climate case against Shell Oil – the fossil fuel giant that employed her father for nearly three decades. Barrett declined to recuse herself even though an amicus brief was filed in the case by the American Petroleum Institute, the lobbying group that her father helped steer – and even though one prominent supporter of the case said her father could be subpoenaed for a deposition because of his potential “direct knowledge of and operational involvement in how Shell managed climate threats”.But no recusal came – and, with Barrett’s help, the supreme court sided with Shell and other fossil fuel giants, delivering a big procedural win for the oil and gas industry.Barrett’s participation in that case followed her Senate confirmation hearing, in which she refused to acknowledge the undisputed science of climate change (and in which flaccid Democrats decided not to bother to push her on recusal). She cast her position as an attempt to avoid being opinionated about the matter, but of course refusing to stipulate basic scientific fact is the opposite of dispassionate. It is an ideological and partisan expression of Republican orthodoxy wholly disconnected from empirical data.And in case you thought Barrett’s zealotry, hypocrisy and conflicts of interest are germane only to one isolated case, remember that in the coming years, the fossil fuel industry will almost certainly ask the high court to shield it from legal consequences for its climate crimes.Barrett’s motives here, though, are not just about war-is-peace-ing her way through her own ridiculously obvious conflicts of interest. She is also trying to preserve the image of the court as a transcendent fount of apolitical morality at a time when more and more Americans may be finally – belatedly – realizing that the panel is, in fact, made up of hacks.As the Daily Poster has been reporting for quite a while, the panel has become the most conservative supreme court in modern history. This is a group of judges who now loyally rubber-stamp legal requests from the US Chamber of Commerce and other corporate groups bankrolling the politicians and the nomination campaigns that install rightwing appointees on the court. The justices have become so politically brazen that they now quietly issue landmark rulings in total secrecy through a so-called shadow docket.Despite this, corporate media has typically portrayed the court as a moderating force above politics, and even putatively liberal or centrist pundits have periodically touted some of the most rightwing justices.This propaganda campaign has worked – even as the court exacerbates the climate crisis, restricts abortion rights, tramples voting rights and issues ever-more-extreme rulings helping corporations crush workers, nearly two-thirds of Americans say they approve of the court’s work, according to the latest survey.However, that’s down a sizable six points since last year – which suggests that more of the country is beginning to realize that a fetid form of corporatism and partisanship is quietly rotting the judiciary from within.Barrett rightly senses that this realization threatens the perceived legitimacy of the justice system, and therefore could create momentum for real reform – whether it means term limits for supreme court judges or an expansion of the court.Any of those reforms are a threat to her power, and the power of all the corporate forces that bought high-court jobs for rightwing justices. So she’s trying to do whatever she can to prevent America from understanding how nefarious the upreme court has become.That’s what her speech was really all about – and we shouldn’t be fooled. We should be emboldened behind the cause of finally fixing a star chamber that is causing so much harm throughout the country and the world.
      David Sirota is a Guardian US columnist and an investigative journalist. He is an editor at large at Jacobin and the founder of the Daily Poster. He served as Bernie Sanders’ presidential campaign speechwriter
      This article was originally published in the Daily Poster, a grassroots-funded investigative news outlet
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      Supreme court justice Amy Coney Barrett reportedly signs $2m book deal

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      The former attorney general William Barr and supreme court justice Amy Coney Barrett have reportedly signed book deals – with Barrett paid a reported $2m for a volume on how judges should not bring their personal feelings into the way they rule.Barrett was appointed to the court in a hurried, politicized and bitter process last year, after the death of Ruth Bader Ginsburg, a champion of progressive values.Barrett is a strict Catholic and her presence on the 6-3 conservative court has given rightwing campaigners hope it will soon strike down Roe v Wade, the 1973 ruling which established the right to abortion.An unnamed source who spoke to Politico said Barrett’s advance was “eye-raising”. A spokesperson for the court did not comment.Barr, who was also attorney general under George HW Bush, is also a strict Catholic conservative. Politico reported that he had begun work on his memoir about working for Donald Trump.Legal analysts decried Barr’s actions in service of the 45th president, including a highly selective handling of the special counsel Robert Mueller’s report about Russian election interference and links between Trump and Moscow and support for Trump’s authoritarian impulses in response to protests for racial justice last summer.Barr resigned in December, over the president’s lies about voter fraud in his defeat by Joe Biden.One legal professional who clashed publicly with Barr and Trump, former New York prosecutor Geoffrey Berman, is reported to have sold a book for “a lot of money”.A source told Politico Berman’s book would be “part Paul Giamatti and Billions” – a reference to a hit TV series about corporate crime in New York – “and then sort of the Trump show in the southern district [of New York]”.Books about Trump’s time in power have proved lucrative, ever since in January 2018 the Guardian broke news of Fire and Fury, the first of two White House tell-alls by the reporter Michael Wolff.The Russia investigation has been retold in print by members of the special counsel’s team including Andrew Weissmann and Peter Strzok.Jared Kushner, Trump’s son-in-law and senior adviser, is reportedly working on a book and former vice-president Mike Pence has signed a deal for two volumes. But Politico said a number of former Trump aides are struggling to find buyers.Peter Navarro, formerly a senior adviser to Trump on economics and trade, told the website: “The reports of my publishing death are greatly exaggerated. I have a major publishing agreement with an attractive advance and my book will be out shortly after Labor Day.”It was not immediately clear if Navarro would again co-operate with Ron Vara, an anti-China policy hand he has quoted liberally in previous books but who turned out both not to exist and to have for his name an anagram of “Navarro”. More

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      in Elections

      Could Trump really settle US election result in the supreme court?

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      Given Donald Trump’s lifelong predilection for tying up opponents in the courts, and his long-stated threat to do the same with an election result that threatened to go against him, his call to have the 2020 election settled in the supreme court is not a surprise.
      So can he do it?
      Trump may, with this in mind, have filled the supreme court with conservative appointees, but things aren’t so straightforward. The supreme court is the final court of appeal in the US and has discretion over which cases it should hear, largely relating to challenges to cases heard in lower courts on points of federal law and the constitution.
      So a lot of action will happen initially at state-level courts – the election has prompted a spate of new cases in the hotly contested battleground state of Pennsylvania, including two due to be heard later on Wednesday.
      What has made the current election landscape more of a minefield is the fact the coronavirus pandemic has led states to look for ways to make voting safer, including expanding absentee ballots, which has opened states up to challenges in the courts over issues such as proposed extensions to the period in which late mail-in votes are counted.
      It is important to remember that election challenges in state courts are nothing new, sometimes without merit, and often have little impact in the end. However, one important exception to that was the 2000 election where a series of legal challenges over faulty voting procedures in Florida handed the election to George W Bush.
      What’s the thrust of Trump’s tactic?
      With more than 40 pre-election cases by Republicans, Trump’s strategy is to argue that any measure to make voting easier and safer in the midst of a pandemic is unconstitutional and open to fraud, a framing aimed at the supreme court.
      A second argument that has been deployed several times is that many of the measures to ensure voting is easy have been made by state officials – like governors – rather than state legislatures, opening a path, say conservatives, for a constitutional challenge.

      How could this work?
      The most common scenario is for lawyers to challenge the way an election was conducted locally and seek to have votes discarded. In the key state of Pennsylvania, conservative groups have already ramped up cases to ensure late mail-in ballots are not counted, with two cases due to be heard on Wednesday.
      However, Pennsylvania requires an unusually high burden of proof for challenging elections, including written affidavits detailing wrongdoing.
      Pennsylvania is already on the supreme court’s radar in this respect. Republicans in the state have already appealed against a Pennsylvania supreme court decision ordering state election officials to accept mail-in ballots that arrive up to three days after the election, relying on an interpretation of the state’s own constitution.
      The US supreme court deferred hearing this case before the election but in a case that it did rule on, the court sided with a Republican challenge saying the state could not count late mail in ballots in Wisconsin. The supreme court chief justice John Roberts made clear, however, that “different bodies of law and different precedents” meant the court did not consider the situation in Pennsylvania and Wisconsin as the same.
      Isn’t that good news for Democrats?
      It’s difficult to know. The Wisconsin decision was delivered before Trump’s third pick for the supreme court, Amy Coney Barrett, formally joined the bench last week, giving conservatives a 6-3 majority.
      Trump’s hope, as he has made very clear, is that this would help in the event he challenged the election result, but it is also unclear how Barrett would respond given Trump’s comments. And she could recuse herself from hearing any election-related cases because of a perceived conflict.
      Where else could we see challenges?
      Michigan, if it is close, is an outlier in that it has no formally laid-out system for a challenge, although any recount is automatically triggered by a margin of less than 2,000 votes.
      North Carolina, for instance, also has a challenge to a late voting extension before the courts. It all becomes something of moot point should Biden secure enough of a lead in the electoral college.
      What’s the worst-case scenario?
      The closer the outcome in the electoral college, the more messy things become, with the memory of Florida in 2000 looming above everything. The closest of results led to 35 messy days of legal challenges and laborious hand recounts, which gave the election to George W Bush after the state was originally called by news organisations for the Democratic challenger Al Gore.
      Bush took 271 of the 538 electoral votes, winning Florida by fewer than 600 votes, after a recount was halted by the supreme court, making Bush the first Republican president since 1888 to win despite losing the popular vote. More

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      in Elections

      Could the 2020 US election really be decided by the supreme court?

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      Like Babe Ruth pointing a bat over a fence, Donald Trump last month called his shot.
      “I think this will end up in the supreme court,” Trump told reporters, referring to the election. “And I think it’s very important that we have nine justices. I think having a 4-4 situation is not a good situation.”
      Earlier this week, Trump got his ninth justice, with the confirmation of Amy Coney Barrett to the seat vacated by the late justice Ruth Bader Ginsburg.
      But is the 2020 presidential election really headed for the supreme court? Here’s a look at the situation:
      Can Barrett hand Trump the election?
      Probably not. The most likely scenario is that American voters alone will decide the election.
      For all its flaws and added complications this year from the coronavirus pandemic, the US elections system has basic features to ensure a high correlation between the vote that is cast and the result that is announced.
      It is highly decentralized, with thousands of jurisdictions staffed by members of each major party, all using different technologies and independently reporting results, which can be reviewed or recounted, with both sides and the media watching out for irregularities before, during and after election day. It might take awhile, and the tragic story of disenfranchisement in the United States continues, but elections officials have vowed to deliver an accurate count.
      Sometimes, however, US elections are very close, and in an era of nihilistic partisanship, court fights during elections are becoming increasingly common. Such disputes might land with increasing frequency before the supreme court.
      It is extremely rare for a presidential election to land before the supreme court. In 1876, five justices sat on a commission that decided the 1876 race for Rutherford B Hayes over Samuel Tilden.
      In the modern era, it has happened just once, in 2000, after the Florida state supreme court ordered a recount in a razor-thin race that the Republican secretary of state said George W Bush had won. Republicans challenged the recount order and the case went to the supreme court, which sustained the challenge and stopped the recount.
      How might a 2020 election-supreme court scenario unfold?
      The supreme court has already issued two significant rulings in the election, one that allowed ballots received in Pennsylvania up to three days after election day to be counted, and a second blocking ballots received in Wisconsin after election day from being counted. Lower courts have issued numerous decisions on issues around voting and counting.
      Republicans in Pennsylvania have vowed to renew their challenge to ballots received after election day, and if they can push the case back to the supreme court, they might find victory this time with Barrett making a majority.
      But if the supreme court ends up getting involved in a major way in the presidential election, it would likely be to weigh in on a question that is not yet clear because we don’t know what legal conflicts will play out in which states.
      In Bush v Gore (2000), lawyers on the Republican side argued that the state supreme court had usurped the legislature’s authority by ordering a recount. The supreme court stopped the recount, not by relying on the argument about the court bigfooting the legislature, but by finding that different standards for vote-counting in different counties violated the equal protection clause.
      Is there a chance Barrett would recuse herself from any case involving a president who appointed her so recently?
      At her confirmation hearing, Barrett dodged just this question. “I commit to you to fully and faithfully applying the law of recusal,” she said. “And part of the law is to consider any appearance questions. And I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not. But I can’t offer a legal conclusion right now about the outcome of the decision I would reach.” More

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      in US Politics

      Biden attacks Trump's 'rushed and unprecedented' confirmation of Amy Coney Barrett – US politics live

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      Key events

      Show

      1.25am EDT01:25
      Barrett reaction: ‘They have lied, cheated, and compromised democracy’

      Live feed

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      5.42am EDT05:42

      Also on a foreign policy front, secretary of state Mike Pompeo is in India at the moment. He has paid respects at the National War Memorial, and then stated India and the United States are cooperating to take on all threats, including China.
      “Today is a new opportunity for two great democracies like ours to grow closer,” Pompeo said before the talks with Indian foreign minister Subrahmanyam Jaishankar and defence minister Rajnath Singh.
      “There is much more work to do for sure. We have a lot to discuss today: Our cooperation on the pandemic that originated in Wuhan, to confronting the Chinese Communist Party’s threats to security and freedom to promoting peace and stability throughout the region.*
      The two countries have signed an agreement on sharing geospatial data, which Singh has said is a “significant achievement”.

      Secretary Pompeo
      (@SecPompeo)
      A solemn moment laying a wreath at the National War Memorial in New Delhi with U.S. Secretary of Defense @EsperDoD. We will never forget the brave men and women who have given their lives in defense of the world’s largest democracy. pic.twitter.com/xvwUdgSvlF

      October 27, 2020

      On coronavirus, Pompeo said US companies are making efforts to sell Gilead’s Remdesivir drug to India. India is on course to shortly reach 8 million cases, and has the second highest case count in the world behind the US.
      China, perhaps unsurprisingly, has not taken too kindly to Pompeo’s words. Reuters report that Chinese foreign ministry spokesman Wang Wenbin told a news briefing in Beijing. “We urge Pompeo to abandon his Cold War mentality, zero-sum mindset, and stop harping on the ‘China threat’”.

      5.33am EDT05:33

      A very quick snap here – an American citizen was kidnapped near the town of Birnin Konni in southern Niger in the early hours of Tuesday morning, three security sources and a local official told Reuters.
      The details of the kidnapping were not immediately clear, and no one had claimed responsibility.
      Niger is struggling with a security crisis as groups with links to al Qaeda and Islamic State carry out an increasing number of attacks on the army and civilians, particularly in the west region bordering Mali and Burkina Faso. Birnin Konni is a few hundred miles to the east of that region, near the border with Nigeria.

      Updated
      at 5.51am EDT

      5.28am EDT05:28

      CNN have a run-down on what Amy Coney Barrett can expect to find in her in-tray as she takes her place on the supreme court. They highlight:
      Trump taxes case – the justices are primed to decide soon whether a New York prosecutor will get access to Trump’s financial documents from January 2011 to August 2019, including his tax returns. Last July, the Supreme Court, voting 7-2, rejected the President’s broad claims of immunity.
      Pennsylvania ballot extensions – Republicans in Pennsylvania asked the Supreme Court on Friday to block a ballot receipt extension that would allow them to be counted if they are received within three days of Election Day – even if they do not have a legible postmark.
      North Carolina ballot counting extension – Republicans in North Carolina are asking the Supreme Court to block a nine-day extension of the counting of ballots if they are received by Election Day and reinstate a three-day extension established by the legislature last June.
      Minnesota congressional election date – a Republican candidate for Minnesota’s 2nd Congressional District is asking the justices to intervene in a case concerning whether his election takes place on November 3 or on February 9, 2021, after the recent death of Legal Marijuana Now Party candidate Adam Weeks caused the contest to be moved to next year as required by state law.
      Mississippi abortion case – the case pertains to Mississippi’s 15-week abortion ban, which Republican Gov. Phil Bryant signed into law in 2018. The law made exceptions only for medical emergencies or cases in which there’s a “severe fetal abnormality,” but not for incidents of rape or incest.
      Read more here: CNN – Trump’s taxes, election and abortion cases await Amy Coney Barrett in her first week

      5.22am EDT05:22

      Even before Amy Cony Barrett takes her seat, there’s a sign of things to come with judgements over the election, as yesterday the supreme court sided with Republicans to prevent Wisconsin from counting mail-in ballots that are received after election day. Maanvi Singh and Sam Levine report:

      In a 5-3 ruling, the justices refused to reinstate a lower court order that called for mailed ballots to be counted if they are received up to six days after the 3 November election. A federal appeals court had already put that order on hold.
      The ruling awards a victory for Republicans in their crusade against expanding voting rights and access. The three liberal justices dissented. John Roberts, the chief justice, last week joined the liberals to preserve a Pennsylvania state court order extending the absentee ballot deadline but voted the other way in the Wisconsin case, which has moved through federal courts.
      “Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin,” Roberts wrote.
      “As the Covid pandemic rages, the court has failed to adequately protect the nation’s voters,” Justice Elena Kagan wrote in a dissent that noted the state allowed the six-day extension for primary voting in April and that roughly 80,000 ballots were received after the day of the primary election.

      Read more here: Wisconsin can’t count mail-in ballots received after election day, supreme court rules

      5.12am EDT05:12

      There’s been an understandable focus on the possible impact of seating Amy Coney Barrett on healthcare during a pandemic. But the potential impacts of her ruling on the Affordable Care Act go much further than coronavirus, as Katelyn Burns writes for us today:

      Jack Jimenez tried to obtain private health insurance, only to be denied because of a pre-existing condition – his gender dysphoria diagnosis. Jimenez is trans and him living his true identity was reason enough to deny him coverage.
      It wasn’t until 2014 when the Affordable Care Act (also known as the comprehensive healthcare reform law and as Obamacare) was implemented, that Jimenez was able to get insurance, the specialist treatment he needed, and a diagnosis because the law eliminated exclusions for pre-existing conditions. It turned out he had pseudotumor cerebri, a condition in which spinal fluid leaks into the skull. The symptoms mimic those of a brain tumor, including vision issues, headaches and ringing in the ears.
      “It’s that very first doctor appointment. It’s unbelievable,” he said. “To have people look at you and go, ‘Oh, OK. Yes. I can see why that’s a big concern. Let me write down these three pages of weird symptoms that you’ve been having and let’s do some tests and figure out what the hell is wrong with you,’” he said. “Nobody, nobody had really done that at all.”

      Read more here: As the future of Obamacare heads to the supreme court, so does trans rights

      5.05am EDT05:05

      Here’s what the New York Times editorial board had to say about the confirmation of Amy Coney Barrett:

      When she takes her seat on the bench at One First Street, it will represent the culmination of a four-decade crusade by conservatives to fill the federal courts with reliably Republican judges who will serve for decades as a barricade against an ever more progressive nation.
      This is not a wild conspiracy theory. Mitch McConnell, the Senate majority leader and one of the main architects of this crusade, gloated about it openly on Sunday, following a bare-majority vote to move Judge Barrett’s nomination to the Senate floor. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” Mr. McConnell said. “They won’t be able to do much about this for a long time to come.”
      That’s the perfect distillation of what this has been all about. It also reveals what it was never about. It was never about letting the American people have a voice in the makeup of the Supreme Court.

      Read more here: New York Times – the Republican party’s supreme court

      4.58am EDT04:58

      Away from the election and the supreme court for a moment, California is bracing for another round of fire danger from gusts even as crews battle two southern blazes that have left more than 100,000 under evacuation orders.
      Associated Press report that some of the fiercest winds of the fire season drove fires up and down the state Sunday night and Monday before easing, but they were expected to resume overnight and continue into Tuesday morning. More