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New Trump Cases Shadowed by Rocky Relationship With Supreme Court

by Aurelia Butler 21 December 2023, 23:21

Though he appointed three justices, his administration had the worst track record before the justices since at least the 1930s.“I’m not happy with the Supreme Court,” President Donald J. Trump said on Jan. 6, 2021. “They love to rule against me.”His assessment of the court, in a speech delivered outside the White House urging his supporters to march on the Capitol, had a substantial element of truth in it.Other parts of the speech were laced with fury and lies, and the Colorado Supreme Court cited some of those passages on Tuesday as evidence that Mr. Trump has engaged in insurrection and was ineligible to hold office again.But Mr. Trump’s reflections on the U.S. Supreme Court in the speech, freighted with grievance and accusations of disloyalty, captured not only his perspective but also an inescapable reality. A fundamentally conservative court, with a six-justice majority of Republican appointees that includes three named by Mr. Trump himself, has not been particularly receptive to his arguments.Indeed, the Trump administration had the worst Supreme Court record of any since at least the Roosevelt administration, according to data developed by Lee Epstein and Rebecca L. Brown, law professors at the University of Southern California, for an article in Presidential Studies Quarterly.“Whether Trump’s poor performance speaks to the court’s view of him and his administration or to the justices’ increasing willingness to check executive authority, we can’t say,” the two professors wrote in an email. “Either way, though, the data suggest a bumpy road for Trump in cases implicating presidential power.”Now another series of Trump cases are at the court or on its threshold: one on whether he enjoys absolute immunity from prosecution, another on the viability of a central charge in the federal election-interference case and the third, from Colorado, on whether he was barred from another term under the 14th Amendment.The cases pose distinct legal questions, but earlier decisions suggest they could divide the court’s conservative wing along a surprising fault line: Mr. Trump’s appointees have been less likely to vote for him in some politically charged cases than Justice Clarence Thomas, who was appointed by the first President Bush, and Justice Samuel A. Alito Jr., who was appointed by the second one.In his speech at the Ellipse on Jan. 6, Mr. Trump spoke ruefully about his three appointees: Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, suggesting that they had betrayed him to establish their independence.“I picked three people,” he said. “I fought like hell for them.”In a speech at the Ellipse on Jan. 6, 2021, Mr. Trump spoke ruefully about his three appointees and suggested that they had betrayed him to establish their independence.Pete Marovich for The New York TimesMr. Trump said his nominees had abandoned him, blaming his losses on the justices’ eagerness to participate in Washington social life and to assert their independence from the charge that “they’re my puppets.”He added: “And now the only way they can get out of that because they hate that it’s not good in the social circuit. And the only way they get out is to rule against Trump. So let’s rule against Trump. And they do that.”Mr. Trump has criticized Chief Justice John G. Roberts Jr. on similar grounds. When the chief justice cast the decisive vote to save the Affordable Care Act in 2012, Mr. Trump wrote on Twitter that “I guess @JusticeRoberts wanted to be a part of Georgetown society more than anyone knew,” citing a fake handle. During his presidential campaign, Mr. Trump called the chief justice “an absolute disaster.”When he spoke on Jan. 6, Mr. Trump was probably thinking of the stinging loss the Supreme Court had just handed him weeks before, rejecting a lawsuit by Texas that had asked the court to throw out the election results in four battleground states.Before the ruling, Mr. Trump said he expected to prevail in the Supreme Court, after rushing Justice Barrett onto the court in October 2020 in part in the hope that she would vote in Mr. Trump’s favor in election disputes.“I think this will end up in the Supreme Court,” Mr. Trump said of the election a few days after Justice Ruth Bader Ginsburg’s death that September. “And I think it’s very important that we have nine justices.”After the ruling, Mr. Trump weighed in on Twitter. “The Supreme Court really let us down,” he said. “No Wisdom, No Courage!”The ruling in the Texas case was not quite unanimous. Justice Alito, joined by Justice Thomas, issued a brief statement on a technical point.Those same two justices were the only dissenters in a pair of cases in 2020 on access to Mr. Trump’s tax and business records, which had been sought by a New York prosecutor and a House committee.The general trend continued after Mr. Trump left office. In 2022, the court refused to block the release of White House records concerning the Jan. 6 attack on the Capitol, effectively rejecting Mr. Trump’s claim of executive privilege. The court’s order let stand an appeals court ruling that Mr. Trump’s desire to maintain the confidentiality of internal White House communications was outweighed by the need for a full accounting of the attack and the disruption of the certification of the 2020 electoral count.Only Justice Thomas noted a dissent. His participation in the case, despite his wife Virginia Thomas’s own efforts to overturn the election, drew harsh criticism.Mr. Trump’s rocky record at the court offers only hints about how the justices will approach the cases already before them and on the horizon. His claim of absolute immunity appears vulnerable, based on other decisions from the court on the scope of presidential power.The case examining one of the federal statutes relied on by the special counsel in the federal election-interference case, which makes it a crime to corruptly obstruct an official proceeding, does not directly involve Mr. Trump, though the court’s ruling could undermine two of the charges against him.Mr. Trump’s rocky record at the court offers only hints about how the justices will approach the cases already before them and on the horizon.Erin Schaff/The New York TimesThe justices have been skeptical of broad interpretations of federal criminal laws, and the arguments in the case will doubtless involve close parsing of the statute’s text.The case that is hardest to assess is the one from Colorado, involving as it does a host of novel questions about the meaning of an almost entirely untested clause of the 14th Amendment, one that could bar Mr. Trump from the presidency. The case is not yet at the Supreme Court, but it is almost certain to arrive in the coming days.Guy-Uriel E. Charles, a law professor at Harvard, said the justices would have to act.“The Supreme Court is a contested entity, but it is the only institution that can weigh in and try to address this problem, which needs a national resolution,” he said. “There has been some loss of faith in the court, but even people who are deeply antagonistic to it believe it needs to step in.” More

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Is the Supreme Court About to Upend American Election Laws?
by Aurelia Butler 8 December 2022, 23:00
Here’s what to know about a court case that could change the way Americans vote — and who decides how they do.For months, my inbox has been bombarded by anxious Democrats and election experts wanting to talk about a once-obscure legal theory that could fundamentally alter the way Americans vote.Known as the independent state legislature doctrine, it holds, in its purest form, that state constitutions have little to no ability to constrain state legislatures. The doctrine emerged from a novel interpretation of the U.S. Constitution’s Elections Clause, which grants states the authority to set the “time, places and manner” of federal elections.At the core of the dispute is whether the framers intended the word “legislature” in the document to be understood strictly, or whether they meant that other institutions — like state courts, governors and secretaries of state — also had important roles to play in setting and interpreting the rules around elections and voting.A fringe version of the doctrine entered the public discussion last year when it emerged that one of Donald Trump’s lawyers, John Eastman, had written a memo arguing that it even allowed state lawmakers to send their own slate of presidential electors to Washington.The Supreme Court has traditionally been gun-shy about encroaching on state courts, especially when they are interpreting their own constitutions.But a more mainstream conservative position, embraced by the Republican Party and rejected by Democrats, started gaining support on the right amid legal battles over the accommodations some states made for voters during the pandemic, like the expansion of mail voting.If adopted, the doctrine would, among other things, bar state courts from ensuring that state laws comply with a requirement, common in many state constitutions, that elections be “free and fair” — with potentially vast implications for rules on redistricting, citizen-led commissions and voting. Understand the U.S. Supreme Court’s New TermCard 1 of 6A race to the right. More
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Jocelyn Benson: Protests at Judges’ Homes Must Be Legal, but They Aren’t Effective
by Aurelia Butler 25 May 2022, 14:20
It was close to 9 p.m. on a Saturday in early December of 2020. My son, then age 4, and I were putting the finishing touches on our Christmas tree as “How the Grinch Stole Christmas” played in the background.That’s when the sound of voices amplified by bullhorns first penetrated our living room. The peace, serenity and holiday spirit of the evening broke as a group of about 20 protesters, some of whom I later learned from the Michigan State Police were armed, gathered outside my home. The protesters — who believed the lie that the November 2020 election had been stolen from Donald Trump — woke our neighbors with a string of threats, vitriol and provocations. They screamed for me to “come outside” and show myself so that they could confront me about doing my duty as secretary of state and chief election officer and refusing to overturn the results of the 2020 presidential election in Michigan — which President Biden won by more than 154,000 votes. “No audit, no peace,” they yelled.I carried my son upstairs and ran bath water loudly to drown out the noise. I worked to stay calm, but I was acutely aware that only one unarmed neighborhood security guard on my front porch stood between my family and the growing crowd. Would the protesters attempt to enter my home? Would a stray bullet enter or ricochet into my son’s bedroom? How long until law enforcement arrived? What would happen when it did?I thought back to that evening when I saw the recent images of people gathering for candlelight vigils outside the homes of U.S. Supreme Court Justices Brett Kavanaugh, Samuel Alito and John Roberts to express their opposition to the leaked draft opinion suggesting an end to the right to abortion in America. By all accounts, these abortion rights demonstrations have been peaceful, and no one was armed or posed an imminent threat. Still, I found the images alarming.Protest is a kind of theater, as abortion rights activists who dressed as characters from “The Handmaid’s Tale” outside the home of Justice Amy Coney Barrett know. The performance is not just for the target of the protests but also for anyone who sees it via news images or video or social media. The fact is, a group of people targeting just one person, at home, particularly at night, appears menacing. That’s true even if that person is one of the nine most powerful judges in the country or is Michigan’s secretary of state.The location of the protests, outside the homes of public officials, is the point critics have seized on to denounce them. Gov. Glenn Youngkin of Virginia has criticized the protests and asked the federal government to take action against those who engage in them. Florida’s lawmakers went so far as to ban “picketing and protesting” at any person’s private residence; when signing the bill, Gov. Ron DeSantis used fiery language about banning “unruly mobs” and “angry crowds.”I believe such bans to be unconstitutional. The right of all Americans to peacefully assemble must be protected. But that doesn’t mean that protesting at the homes of public officials is effective.Protest is not always polite, and there are times when impolite or even uncivil protests help to raise awareness of continuing injustices that otherwise go unseen or unaddressed. One example I look to is that of Representative John Lewis, who suffered a skull fracture when he faced off with state troopers while marching nonviolently for civil rights in Selma, Ala., in 1965. Mr. Lewis left us with the mandate to “get in good trouble, necessary trouble, and help redeem the soul of America.”Since working in Alabama in the late 1990s, investigating hate groups and hate crimes, I have been inspired by Mr. Lewis and those other brave foot soldiers in Selma who stood at the foot of the Edmund Pettus Bridge in 1965 to demand the American promise of democracy be fulfilled for every citizen. That powerful protest dramatized and made visible the injustices that African Americans were forced to endure in the South and elsewhere. The image of white state troopers and deputized bystanders beating the protesters sparked outrage across the nation. It inspired broad support for the civil rights movement and led the U.S. Congress to pass the Voting Rights Act, signed into law by President Lyndon Johnson in August 1965.Banning or restricting protest silences necessary dissent and closes off an avenue to shine a light on injustices, to get the attention of government officials and the public. The role of any public servant is to listen and respond to the concerns of all the citizens we serve, particularly those whose voices and perspectives are marginalized. In cases where people are dismissed, silenced or blocked from seeking change at the ballot box or through a breakdown of other democratic norms and institutions, protest may be the only means to effect change. In those cases, peaceful acts of dissent or civil disobedience can be enormously powerful.It’s also important to recognize, however, that not all protests are successful at prompting change. I expect that those who gathered outside my home also felt shut out from power when they screamed at me that night. But showing up at my home to shout falsehoods about an election because they didn’t like the results did not help their cause. Many were there because they’d been lied to, told by people with immense power — including the departing president — that the 2020 election was “stolen,” though it was not.Days later, a colleague told me of hearing that Mr. Trump had suggested in a White House meeting that I should be arrested, charged with treason and executed. (After I discussed this on NBC News recently, a spokesman for Mr. Trump accused me of lying.) These protesters attempted to bully me into abdicating my duty to protect the will of the people of Michigan. But the people who made me fear for my family that night also emboldened me to do my job with integrity.In national coverage of the incident, people saw an angry group, some of them armed, outside the home of a woman and her young son. A month before the Jan. 6 storming of the U.S. Capitol, it was an early and alarming demonstration of how far some were willing to go to try to undermine a fair election.A protest’s success is partly a matter of its effect. The march in Selma made a huge difference to the country. The bullying outside my home failed miserably.The success or failure of the abortion rights protests outside the justices’ homes isn’t clear. They were cheered on and defended as peaceful by many who were similarly upset by the Supreme Court’s likely new position on Roe v. Wade. But still, the targeting of individual officials at home opened the protests up to criticism, which distracted from their important cause.I will always advocate the power, and critical importance, of peaceful protest, which is a right that must be protected, even if it means protesters can sit peacefully or shout menacingly outside the homes of elected and appointed officials like the Supreme Court justices — or me and my family.But if the goal is to change minds, history and my own experience underscore that protesting outside an official’s home is rarely if ever effective at achieving the goals of those gathering — and oftentimes, it backfires.Jocelyn Benson (@JocelynBenson) is Michigan’s secretary of state. She is the author of “State Secretaries of State: Guardians of the Democratic Process” and a 2022 recipient of the John F. Kennedy Profile in Courage Award.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More
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The Supreme Court Fails Black Voters in Alabama
by Aurelia Butler 9 February 2022, 12:36
You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.This is the same John Roberts who in 1982, as a young lawyer in the administration of President Ronald Reagan, fought a crucial amendment to the Voting Rights Act of 1965; whose majority opinion in 2013 gutted one-half of the Voting Rights Act and who joined an ahistoric opinion last summer that took aim at the other half; and who famously complained in dissent from a 2006 decision in favor of Latino voters in South Texas that “it is a sordid business, this divvying us up by race.”Yes, that Chief Justice Roberts. What the 5-to-4 majority did was that far out of line.The unsigned order that drew the chief justice’s dissent Monday night blocked the decision by a special three-judge Federal District Court ordering the Alabama Legislature to draw a second congressional district in which Black residents constitute a majority. Alabama’s population is 27 percent Black. The state has seven congressional districts. The lower court held that by packing some Black voters into one district and spreading others out over three other districts, the state diluted the Black vote in violation of the Voting Rights Act.The Supreme Court will hear Alabama’s appeal of the district court order in its next term, so the stay it granted will mean that the 2022 elections will take place with district lines that the lower court unanimously, with two of the three judges appointed by President Donald Trump, found to be illegal.Chief Justice Roberts objected that the ordinary standards under which the Supreme Court grants a stay of a lower court opinion had not been met. “The district court properly applied existing law in an extensive opinion with no apparent errors for our correction,” he wrote. Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, also dissented in a more extensive opinion that accused the majority of using the court’s emergency “shadow docket” not only to intervene improperly on behalf of the state but also to change voting rights law in the process.This is no mere squabble over procedure. What happened Monday night was a raw power play by a runaway majority that seems to recognize no stopping point. It bears emphasizing that the majority’s agenda of cutting back on the scope of the Voting Rights Act is Chief Justice Roberts’s agenda too. He made that abundantly clear in the past and suggested it in a kind of code on Monday with his bland observation that the court’s Voting Rights Act precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.” But in his view, that was an argument to be conducted in the next Supreme Court term while permitting the district court’s decision to take effect now.While the majority as a whole said nothing, Justice Brett Kavanaugh took it upon himself to offer a kind of defense. Only Justice Samuel Alito joined him. Perhaps the others — Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett — chose not to sign onto his rude reference to Justice Kagan’s “catchy but worn-out rhetoric about the ‘shadow docket.’ ” Or perhaps his “To reiterate: The court’s stay order is not a decision on the merits” rang a little hollow when, as Justice Kagan pointed out, “the district court here did everything right under the law existing today” and “staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.”In other words, when it comes to the 2022 elections, for Black voters in Alabama the Supreme Court’s procedural intervention is the equivalent of a ruling on the merits.Or maybe the others couldn’t indulge in the hypocrisy of Justice Kavanaugh’s description of the standards for granting a stay. The party asking for a stay, he wrote, “ordinarily must show (i) a reasonable probability that this court would eventually grant review and a fair prospect that the court would reverse, and (ii) that the applicant would likely suffer irreparable harm absent the stay.”But wait a minute. Weren’t those conditions clearly met back in September when abortion providers in Texas came to the court seeking a stay of the Texas vigilante law, S.B. 8, which was about to go into effect? That law, outlawing abortion after six weeks of pregnancy and authorizing anyone anywhere in the country to sue a Texas abortion provider for damages, was flagrantly unconstitutional, and the law was about to destroy the state’s abortion infrastructure. But did Justice Kavanaugh or any of the others in Monday’s majority vote to grant the requested stay? They did not. Chief Justice Roberts did.It’s impossible not to conclude that what we see at work is not some neutral principle guiding the Supreme Court’s intervention but simply whether a majority likes or doesn’t like what a lower court has done. In his opinion, Justice Kavanaugh sought to avoid that conclusion by arguing that when it comes to election cases, the Supreme Court will more readily grant a stay to counteract “late judicial tinkering with election laws.” But there was no late “tinkering” here. The legislature approved the disputed plan in November, after six days of consideration, and the governor signed it. The district court conducted a seven-day trial in early January and on Jan. 24 issued its 225-page opinion. The election is months away — plenty of time for the legislature to comply with the decision.Disturbing as this development is, it is even more alarming in context. Last July, in a case from Arizona, the court took a very narrow view of the Voting Rights Act as a weapon against vote denial measures, policies that have a discriminatory effect on nonwhite voters’ access to the polls. That case, Brnovich v. Democratic National Committee, was brought under the act’s Section 2, which prohibits voting procedures that give members of racial minorities “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Justice Alito’s opinion for a 6-to-3 majority set a high bar for showing that any disputed measure is more than just an ordinary burden that comes with turning out to vote.It was an unusual case, in that Section 2 has much more typically been used as it was in Alabama, to challenge district lines as causing vote dilution. Obviously, at the heart of any Section 2 case is the question of how to evaluate the role of race. In its request for a stay, Alabama characterized the district court of having improperly “prioritized” race, as opposed to other districting factors, in ordering a second majority Black district. In response, the American Civil Liberties Union and the NAACP Legal Defense & Educational Fund, representing the Alabama plaintiffs, called this a mischaracterization of what the district court had actually done when it took account of the compactness and cohesion of the Black community and the history of white Alabama voters refusing to support Black candidates.Stripped to its core, Alabama is essentially arguing that a law enacted to protect the interests of Black citizens bars courts from considering race in evaluating a redistricting plan. Justice Kagan’s dissenting opinion contained a warning that granting the stay amounted to a tacit acceptance of that startling proposition. She said the stay reflected “a hastily made and wholly unexplained prejudgment” that the court was “ready to change the law.”The battle over what Section 2 means has been building for years, largely under the radar, and now it is front and center. The current Supreme Court term is all about abortion and guns. The next one will be all about race. Along with the Alabama case, Merrill v. Milligan, the Harvard and University of North Carolina admissions cases are also on the docket — to be heard by a Supreme Court that, presumably, for the first time in history, will have two Black justices, and all in the shadow of the midterm elections. The fire next time.Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008. She is the author of “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More
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Tap Dancing With Trump: Lindsey Graham’s Quest for Relevance
by Aurelia Butler 14 August 2021, 15:14
Lindsey Graham’s moment, it seemed, came on the evening of Jan. 6. With crews still cleaning up the blood and broken glass left by the mob that just hours before had stormed the Capitol, he took the Senate floor to declare, “Count me out” and “Enough is enough.”Half a year later, a relaxed Mr. Graham, sitting in his Senate office behind a desk strewn with balled napkins and empty Coke Zero bottles, says he did not mean what almost everybody else thought he meant.“That was taken as, ‘I’m out, count me out,’ that somehow, you know, that I’m done with the president,” he said. “No! What I was trying to say to my colleagues and to the country was, ‘This process has come to a conclusion.’ The president had access to the courts. He was able to make his case to state legislators through hearings. He was disappointed he fell short. It didn’t work out. It was over for me.”What was not over for the senator from South Carolina was his unlikely — to many people, confounding — relationship with that president, Donald J. Trump.For four years, Mr. Graham, a man who had once called Mr. Trump “a race-baiting, xenophobic bigot,” exemplified the accommodations that so many Republicans made to the precedent-breaking president, only more vividly, volubly and candidly.But Mr. Graham’s reaffirmed devotion has come to represent something more remarkable: his party’s headlong march into the far reaches of Trumpism. That the senator is making regular Palm Beach pilgrimages as supplicant to an exiled former president who inspired the Capitol attack and continues to undermine democratic norms underscores how fully his party has departed from the traditional conservative ideologies of politicians like Mitt Romney, Liz Cheney and Mr. Graham’s close friend John McCain.To critics of Mr. Graham, and of Mr. Trump, that enabling comes at enormous cost. It can be seen, for example, in Republicans’ efforts to torpedo the investigations of the Capitol riot and in the way the party, with much of its base in thrall to Mr. Trump’s stolen-election lie, is enacting a wave of vote-suppressing legislation in battleground states.Mr. Graham, of course, describes his role in far less apocalyptic terms. Even as he proclaims — from under the hard gaze of a half-dozen photos of Mr. McCain — that the Republican Party is now “the Trump party,” even as he goes on Fox to declare that the party can’t “move forward” without the man who twice lost the popular vote, Mr. Graham casts himself as a singular force for moderation and sanity.Senator Lindsey Graham at a campaign rally last year with President Donald J. Trump.Doug Mills/The New York TimesHe alone can fix the former president, he believes, and make him a unifying figure for Republicans to take back both houses of Congress next year and beyond. To that end, he says, he is determined to steer Mr. Trump away from a dangerous obsession with 2020.“What I say to him is, ‘Do you want January the 6th to be your political obituary?’” he said. “‘Because if you don’t get over it, it’s going to be.’”Many of Mr. Graham’s old friends on both sides of the aisle — and he still does not lack for them — grudgingly accepted as political exigency his original turn to Mr. Trump. His deviations from conservative orthodoxy, they understood, had left him precariously mistrusted back home. Now, though, they fear he has reached a point of no return.“Trump is terrible for the country, he’s terrible for the Republican Party and, as far as I’m concerned, he’s terrible for Lindsey,” said Mark Salter, a close McCain friend who was the ghostwriter for Mr. Graham’s autobiography.“Lindsey is playing high-risk politics,” said Senator Dick Durbin, a liberal Democrat from Illinois who considers Mr. Graham a friend. “He is pinning the hopes of the Republican Party on a very unstable person.”What makes Lindsey run?Over the last four years, pundits and political analysts have endlessly teased the question. Yet what emerges from interviews with more than 60 people close to him, and with the senator himself, is a narrative less of transformation than of gyration — of an infinitely adaptable operator seeking validation in the proximity to power. It is that yearning for relevance, rooted in what he and others described as a childhood of privation and loss, that makes Mr. Graham’s story more than just a case study of political survival in the age of Trump.Raised just this side of poverty and left parentless early, Mr. Graham, 66, has from his school days chosen to ally himself with protective figures he calls “alpha dogs,” men more powerful than himself — disparate, even antagonistic, figures like Mr. Trump and Mr. McCain, the onetime prisoner of war so famously disparaged by Mr. Trump. Indeed, toward the end of his life, Mr. McCain privately remarked that his friend was drawn to the president for the affirmation.“To be part of a football team, you don’t have to be the quarterback, right?” Mr. Graham said in the interview. “I mean, there’s a value in being part of something.”It was in that role, amid unrelenting pressure from Mr. Trump and his sons, that Mr. Graham called Georgia’s top elections official in November to inquire about the vote tally in the state, which Mr. Trump lost by nearly 12,000. That call is now part of a criminal investigation of the Trump camp’s actions in Georgia.Yet nothing Mr. Graham does or says seems enough to satisfy the Trumps. That has left the self-described conciliator struggling to generate good will on both sides of the political divide.In mid-November, as he was publicly urging Mr. Trump to keep up the election fight, Mr. Graham made a previously unreported phone call to President-elect Joseph R. Biden Jr., to revive a friendship damaged by his call for a special prosecutor to investigate the overseas business dealings of Mr. Biden’s son Hunter.It was short, and not especially sweet, according to three people with direct knowledge of the exchange. Mr. Graham told Mr. Biden that, in attacking Hunter, he had done only the bare minimum to satisfy Trump supporters back home. (A Graham spokesman disputed that account.)Mr. Biden, who viewed Mr. Graham’s statement as an unforgivable attack on his family responded by saying he would work with any Republican, but dismissed the approach as Mr. Graham trying to have it both ways, two people close to the president said.“Lindsey’s been a personal disappointment,” Mr. Biden said a few days later, “because I was a personal friend of his.”From Humble BeginningsIt is a truism of political biography that golf affords a window into both style and soul. And it has certainly played an important role in sustaining the precarious but durable Trump-Graham partnership. (That bond was on display in May, when the two men staged a Trump Graham Golf Classic fund-raiser, with an entry fee of $25,000.)Still, the senator’s frequent impromptu trips to Mar-a-Lago remain a bit of a puzzlement to the former president.“Jesus, Lindsey must really, really like to play golf,” Mr. Trump recently told an aide.The game — and the status conferred by playing with Mr. Trump — is no small thing to a man who grew up on the creaky lower rungs of the middle class, living in the back room of his family’s beer-and-shot pool hall, the Sanitary Cafe, in Central, S.C., a mill town at the midpoint of the freight line between Atlanta and Charlotte, N.C.His parents, Millie and F.J. Graham — known to everyone in town as Dude — worked 14-hour days and slept in the cramped apartment next to the bar’s two bathrooms, their kitchen separated by a curtain from the smoky tavern, with its jukebox, pinball machines and peeling laminate-wood counter. The future senator shared a single room with his parents, his sister, Darline, and the occasional patron, often coated in mill dust, who would wander in tipsily to watch TV with the family.A young Mr. Graham with his mother, Millie, in 1958.via Lindsey GrahamThe future senator being held by his father, F.J., several years earlier.via Lindsey GrahamMr. Graham was very close to both parents, and he finds it hard to discuss their loss without choking up. But his mother was the warmer presence; her husband was a wry but undemonstrative World War II veteran devoted to his family but preoccupied with keeping the business afloat and prone, in Mr. Graham’s early years, to drinking.“He had a tough side to him. He kept a gun behind the counter,” the senator’s sister, Darline Graham Nordone, recalled in a recent interview, adding, “You knew that Mr. Dude was a kind, good man, but you weren’t going to mess with him.”It fell largely to Mr. Graham, 9 years older, to be parent to his sister. From his early teens, she recalled, it was Lindsey who helped her with her homework, Lindsey who gave her medicine when she was sick. Not too many years later, it would be Lindsey who told her that their mother was dying. “Lindsey took me to the end of the hall” at the hospital, she said. “He told me he didn’t know if she was going to make it.”The Grahams did not have the money or the time for real vacations, so to bond with his father, Lindsey decided they should take up golf. They began playing at a chewed-up county course, and it became such a weekly ritual that, to save on rental fees, Dude Graham eventually bought an old electric cart that could be charged, free, at the course’s cart shed.Mr. Graham with his sister, Darline, and his parents.via Lindsey GrahamShortly after Mr. Graham began attending the University of South Carolina, his mother was diagnosed with lymphatic cancer. On weekends, he would ride a bus home to look after his sister. “It was just dark and lonely without him there,” she said.Fifteen months after their mother died, Ms. Nordone, still in middle school, woke up to discover Dude Graham dead, from a heart attack.“Don’t worry,” her brother told her, “I’ll always take care of you,” which he did as he ground his way through law school.Had this childhood led Mr. Graham to seek out father figures in his adult life? “That’s a tough question,” she replied. “I just don’t know.”Either way, his quicksilver mind and self-lacerating sense of humor made him a magnet for mentors and big brothers. Two of the earliest were his high school coach, Alpheus Lee Curtis, and Colonel Pete Sercer, the head of Air Force R.O.T.C. at the University of South Carolina, who guided him toward his first career, as a military lawyer, serving largely in Europe.Another mentor was Larry Brandt, his law partner when he returned to South Carolina. In an interview, Mr. Brandt recalled that Mr. Graham’s career in politics began when he was approached by both the local Republican and Democratic parties in 1992 to run for a state House seat held by an unpopular Democrat.“Lindsey came to me and said, ‘What do you think?’” said Mr. Brandt, a lifelong Democrat. “Lindsey and I talked a lot over time about issues, and there’s no doubt Lindsey was a Democrat on all social issues.”Ultimately, he said, Mr. Graham’s decision came down to calculation more than deep partisan feeling: The Democratic primary would be competitive; if he ran as a Republican, he would be able to devote himself to the general election.He won, and within a few years was elected to Congress, which in 1999 led to a career-making performance as a House manager in President Bill Clinton’s impeachment trial. Mr. McCain was so impressed with the barbed, folksy one-liners that he invited Mr. Graham back to his Senate office, where he declared himself a fan — and, oh, would Mr. Graham endorse him for president in 2000?Mr. Graham was House manager in President Bill Clinton’s impeachment trial in 1999.Douglas Graham/Congressional Quarterly, via Getty Images“I said, ‘Yeah,’” recalled Mr. Graham, who remembers thinking, in the moment, how far he had come from the Sanitary Cafe. “No one’s ever asked me to help them run for president. If Bush had asked me before him, I’d have probably said yes.”After Mr. Graham’s election to the Senate in 2002, the two became inseparable, communicating by flip-phone, often several times an hour, with Mr. Graham serving as sounding board, soother and tactical adviser. Their influence peaked as they supported the Iraq war before joining forces to question the Bush administration’s strategy and interrogation methods. They shared a vision for the Republican Party — inclusive, center-right, hawkish on foreign policy, more moderate on immigration and other domestic issues.But that ideal had long been fading when Mr. Graham joined Mr. McCain at his ranch in Sedona, Ariz., on election night 2016. Mr. Graham still believed Hillary Clinton would win in a romp, yet there he was, incredulously watching the returns come in for Mr. Trump, uttering profanities over and over and over.“I was in shock for a week,” Mr. Graham recalled. It did not take him long to make a decision. “Am I going to be fighting a rear-guard action here? Or am I going to try to work with him?”‘An Abiding Need to Be in the Room’Mr. McCain, whose own presidential aspirations ended after his loss to Barack Obama in 2008, had urged Mr. Graham to run in 2016. But he warned his friend against engaging in a one-on-one verbal brawl with Mr. Trump. Mr. Graham did not listen.“I want to talk to the Trump supporters for a minute. I don’t know who you are and why you like this guy,” Mr. Graham said on CNN in late 2015, before quitting the race. “Here’s what you’re buying: He’s a race-baiting, xenophobic bigot. He doesn’t represent my party.”Yet scarcely two months after Mr. Trump’s inauguration, a grinning Mr. Graham could be found in the office of the White House press secretary, Sean Spicer, chatting with Kellyanne Conway, one of the president’s top advisers.The senator had been orchestrating his West Wing appearance, steadily softening his criticism of Mr. Trump on Fox, and working some of the network’s pro-Trump hosts, with the knowledge that the president would be watching. He had also had dinner with Jared Kushner and Ivanka Trump.Mr. Graham’s presence bewildered some Trump aides, but not people who knew him. “He has an abiding need to be in the room, no matter what the cost,” said Hollis Felkel, a veteran South Carolina Republican political consultant.Mr. Graham said he was there to sell the president on a more hawkish foreign policy at a time when Mr. Trump was vowing quick withdrawals from Afghanistan. He was surprised, he said, how friendly the president was. Indeed, to hear Mr. Graham talk about his interactions with Mr. Trump is to be struck by how much he seems to relish them.“He came in and he was very gracious, like he’s trying to sell me a condo, showed me around,” Mr. Graham recalled.Mr. Graham said he reciprocated by praising his host’s political skills and pledging to support him when he could, especially on judicial nominations. He soon followed up with a flurry of phone conversations on politics, gossip and golf.That led to the prize Mr. Graham wanted from the start: an invitation to Mr. Trump’s club in Virginia.“Where it all changed is when we went for golf,” Mr. Graham said.Senator and president playing golf last summer at the Trump National Golf Club in Sterling, Va.Jim Lo Scalzo/EPA, via ShutterstockMr. Trump had his own motivations for making nice. He was an interloper who craved legitimacy, and found the Senate Republican leader, Mitch McConnell, unapproachable and humorless. Mr. Graham, according to Stephen K. Bannon, Mr. Trump’s chief strategist at the time, wasn’t a “stiff,” like so many others in Congress.“The senator closest to Trump was Lindsey Graham, and it’s not even a question,” Mr. Bannon said. “Have you met Lindsey Graham? I like him, and I think he’s the worst.”Like Mr. McCain, Mr. Trump was drawn to Mr. Graham’s ambidextrous, pragmatic politics — and his strategic amiability.“People apparently found the combination of my slight stature and gabby nature comical,” Mr. Graham wrote in his 2015 memoir, referring to a coping strategy learned in childhood. “I was expected to entertain folks. And I knew the more audacious I was the more entertaining I would be.”Mr. Trump also told his staff that he preferred the company of people he had turned — former enemies who had come to see that he was actually a good guy they could respect.Mr. McCain was decidedly not turned. While he understood the need to make peace with the party’s leader, he told Mr. Graham flatly that the president “is not one of us.”He kept his temper in check until Mr. Graham started raving about how “such a big, older guy” could put up an 18-hole score that nearly matched his age, according to a mutual friend.“My ass he shot a 70!” Mr. McCain yelled.“John was just surprised and to certain extent disappointed, but not really angry, with the closeness of the Lindsey Graham relationship with Trump,” said Joseph Lieberman, a former Democratic senator from Connecticut who was close to both lawmakers.When Mr. McCain’s aggressive brain tumor was diagnosed in the summer of 2017, Mr. Graham compartmentalized, comforting his friend and courting Mr. Trump.The president enlisted Mr. Graham and another McCain ally, Gov. Doug Ducey of Arizona, to win over Mr. McCain on a key campaign promise, repealing Obamacare, and Mr. Graham eagerly agreed. Both assured White House officials they had persuaded Mr. McCain to vote “yes,” according to former West Wing aides involved in the talks.They had not. On July 28, a dying Mr. McCain returned to Washington to deliver his defiant thumbs-down, and it seemed, for a moment, that Mr. Trump’s grip on the party was not as tight as he claimed.There would be one more act. The McCain family had insisted that the president and his entourage would not be welcome at the senator’s state funeral, but Ivanka Trump, who had collaborated with Mr. McCain’s wife, Cindy, on the issue of human trafficking, insisted on attending. It was Mr. Graham who persuaded Ms. McCain to reluctantly extend an invitation to Ms. Trump and Mr. Kushner.Afterward, Mr. McCain’s daughter Meghan angrily told the late-night host Stephen Colbert, “My father had been very clear about the line between the McCains and the Trumps.”Mr. Graham paid his respects after the death in 2018 of Senator John McCain, a longtime friend.Erin Schaff for The New York TimesBy this time, Trump aides were noticing a curious dynamic: It wasn’t just that the president absolved Mr. Graham for the Obamacare debacle; the senator was one of the few people who could get away with taking on Mr. Trump and his temper.The most common source of flare-ups was Afghanistan. During one golf outing, the two men got into a screaming match after Mr. Graham said he would rather deal with a bomb killing civilians in Kabul “than in Times Square.”Mr. Trump barked an expletive, shouted, “You guys have been wrong for 20 years,” and stomped off, according to a person who witnessed the exchange.A few minutes later, they were chatting amiably as if nothing had happened, the person said.Some of the president’s top advisers were growing annoyed by Mr. Graham’s pesky omnipresence — finagling flights on Air Force One, showing up at the West Wing on little notice. “Sometimes he’d just like to sit with the president in the dining room off the Oval at the end of the day,” a former senior White House official said.In early 2019, as the Trumps were sitting down to dinner, Mr. Graham phoned up the president’s assistant, Madeleine Westerhout, to say he was coming up to the White House residence with Ted Cruz, the senator from Texas, to discuss a plan to address one of the many crises plaguing the administration.Mr. Trump obliged, Melania Trump felt put upon and nothing came of it, aides familiar with the episode said.‘I’m the Senator From South Carolina’Mr. McCain’s death in August 2018 had been a profound loss for Mr. Graham, and during the interview in his office, he nearly broke down describing the hours he spent at his friend’s hospital bedside, holding his hand, during those final days in Arizona.Yet he also acknowledged that the dissolution of the partnership had freed him to look after his own political interests, which entailed cozying up to the right-wing populists who increasingly dominated his party in South Carolina.“I jokingly refer to Senator Graham as Senator Graham 1.0 and the Senator Graham 2.0 who came along during the Trump years, the 2.0 being the preferred upgrade,” said Nate Leupp, chairman of the Greenville County Republicans and one of several party leaders in South Carolina who said they had long been wary of the senator’s “maverick alliances.”Mr. Graham’s 2016 presidential primary bid — a bit of a lark, intended to vault him to the national stage as a solo act — had been a humiliating reminder of how vulnerable he was at home: When he dropped out in December 2015, he was polling in single digits in South Carolina.His McCain-esque positions on immigration and trade, he admits, were part of the problem. “I adore John McCain. Yeah, he’s done more to mentor me and help me than any single person in politics,” Mr. Graham said. “But having said that, I’m the senator from South Carolina.”Perhaps the most sensitive issue for Mr. Graham was his bipartisan record on judicial appointments.Mr. Graham had long argued that presidents deserved to have their judicial nominees confirmed, and in 2010, he voted for Mr. Obama’s first Supreme Court nominee, Elena Kagan. It came at a cost: Anti-abortion protesters in South Carolina hanged him in effigy, and when he ran for re-election in 2014, six primary opponents popped up, each hammering him for being too liberal on the courts.Mr. Graham has played down the episode, but it clearly scarred him.“I have triplets, and I would probably do anything, including breaking the law, to protect them. He’s got a Senate seat,” Mick Mulvaney, the former acting White House chief of staff, said of Mr. Graham on a recent podcast.So when a second Supreme Court vacancy opened up in early 2016, Mr. Graham signed on to Mr. McConnell’s refusal to allow a Senate vote on the nomination of Merrick Garland, on the grounds that it came too close to the November election.And several people described a similar determination to prove his conservative bona fides in what was probably Mr. Graham’s most memorable public performance in the service of Mr. Trump: his outraged defense of Brett M. Kavanaugh, whom he had known for a decade, against sexual misconduct allegations during the Supreme Court confirmation hearings in September 2018.“You’re legitimizing the most despicable thing I have seen in my time in politics!” Mr. Graham said.Yet if Mr. Graham’s performance won him kudos from skeptics back home, it did not translate into safety ahead of his re-election campaign. The election became a referendum, of sorts, on Mr. Graham’s shotgun conversion to Trumpism.In mid-2019, his eventual Democratic opponent, Jaime Harrison, began raising tens of millions of dollars from donors nationwide. And after a mid-September 2020 poll showed the candidates in a dead heat, Mr. Harrison raised $1 million in 24 hours, part of a $57 million quarter, the richest for any Senate candidate in history.“I’m getting overwhelmed,” Mr. Graham lamented to Sean Hannity on Fox. “LindseyGraham.com. Help me.”The senator campaigned for re-election last year. He won by 10 points.Gavin McIntyre for The New York TimesBehind the scenes, Mr. McConnell tapped his national fund-raising network, channeling $10 million to Mr. Graham’s cause, and two Ohio-based dark-money groups chipped in $4.4 million.As for Mr. Trump, he made one appearance with Mr. Graham in South Carolina and cut one campaign ad. But he did let Mr. Graham raise money off his brand, and, in the end, the senator raked in about $111 million, almost nine times what he had raised in 2014 and nearly as much as Mr. Harrison.Mr. Graham won by 10 points.After the ElectionEven with a renewed six-year lease on public life, Mr. Graham hasn’t stopped tap dancing.In the days following the election, he scrambled to stay on Mr. Trump’s good side, publicly urging him not to concede until he had exhausted all his legal challenges and listening calmly on late-night phone calls as the president raged about a stolen election. He even wrote a $500,000 check to aid Mr. Trump’s legal defense.But privately he was already reaching out to Mr. Biden and counseling Mr. Trump to ramp down his rhetoric. And he steadfastly refused to appear at news conferences with Mr. Trump’s legal team or repeat their false claims — which annoyed the president and infuriated his son Donald Jr., always a Graham skeptic, retweeting stories with a “#whereslindsey” hashtag when he felt the senator was not standing up for his father.The biggest source of residual anger inside the Trump bubble was Mr. Graham’s refusal, as chairman of the Judiciary Committee, to acquiesce to White House demands for hearings into Hunter Biden’s business dealings.Mr. Graham said all the right things on Fox, and hinted he would get to the bottom of the matter. But his staff advised him that it was impossible to tell reality from disinformation, so he delayed and deliberated, happily deferring to the homeland security committee.He had a better relationship with the president’s middle son, Eric, yet he, too, was growing frustrated that the senator would not even retweet claims of election fraud. At a family meeting, he fumed that Mr. Graham had always been “weak” and would pay a price because his father would be the most powerful Republican for years to come, according to a political aide who was within earshot. Mr. Trump was working the senator, too, according to people familiar with the exchanges.Mr. Graham said that what happened next had nothing to do with the pressure bearing down on him. But on Nov. 13, he called Brad Raffensperger, the Georgia secretary of state, the first of a series of interventions Mr. Trump and his allies were to make into the tallying of the results in Georgia.Mr. Raffensperger has said that Mr. Graham asked if there was a legal way, using the state courts, to toss out all mail-in votes from counties with high rates of questionable signatures. And a Raffensperger aide who was on the call said in an interview that Mr. Graham’s goal was getting as many ballots thrown out as possible.Even so, he made no overt request to discard ballots, according to another Raffensperger aide, Gabriel Sterling. As such, prosecutors investigating the Trump camp’s actions in Georgia would probably have difficulty establishing any wrongdoing by Mr. Graham.In the interview, Mr. Graham laughed off the idea that he had done anything wrong, saying he had called “Ratzenberger” simply to ask about auditing signatures.Around the same time, he made another call, to Governor Ducey in Arizona. His aim, Mr. Graham said, was not to overturn Mr. Biden’s narrow victory but to counter the “garbage” Mr. Trump was getting from his own legal team, according to an aide who was given a readout.In Mr. Graham’s mind, he had threaded the needle: He had professed loyalty and value to Mr. Trump while taking an unequivocal public stand, as Mr. Biden’s inauguration approached, opposing efforts to block certification of the election.Then came Jan. 6, and his presumed declaration of independence.Mr. Graham, in fact, began softening his tone almost immediately, following a tongue-lashing from the president and a confrontation, two days after the Capitol assault, with dozens of Trump supporters at Ronald Reagan Washington National Airport, chanting: “Traitor! Traitor!”Mr. Graham was escorted by security through a Washington airport in January while Trump supporters called him a traitor.Oreo Express/Via ReutersBy Jan. 13, when Mr. Trump was impeached on charges of inciting the riot, Mr. Graham was back on board, offering advice on how to quell a possible revolt by Republican senators. What followed, in the eyes of many Senate colleagues, was a frenzied overcorrection.Mr. Graham has become an ever-more-frequent face on Fox, denying the existence of systemic racism and decrying federal aid to Black farmers as “reparations.” He posted a video of himself firing an AR-15 bought as protection from marauding “gangs” and forcefully backed Ms. Cheney’s expulsion from House leadership. He has embraced the culture-war grandstanding that he and Mr. McCain mocked when they were a team — recently saying he would “go to war” against students at the University of Notre Dame for trying to block a Chick-fil-A on campus over the anti-L.G.B.T.-rights politics of its executives.Yet there are signs Mr. Graham may be playing an inside-outside game. He has placed himself at the center of a monthslong effort to draft bipartisan police-reform legislation and recently met with the Rev. Al Sharpton to hear him out on the bill. And when he tested positive for Covid-19 after being inoculated, he made a point of telling vaccine deniers in his own party to get their shots.During his near-weekly golfing trips to Mar-a-Lago, he said, he is still trying to persuade Mr. Trump to “take it down a notch.” He remains convinced he can get him to play by the rules, and not the other way around.Many of the people who have known him longest are not so sure.From his office in Walhalla, just up the road from Central, Mr. Graham’s old law partner, Mr. Brandt, has been thinking about something the senator told him during a visit eight or nine years ago.“Larry, you are too honest to survive in Washington,” Mr. Graham said. “Eighty-five percent of the people there would sell their mothers to keep their jobs.”Mr. Brandt ran into Mr. Graham at a local restaurant in 2017, as the senator was beginning to court Mr. Trump. Mr. Brandt took him to task, reminding him of their “85 percent” conversation. “I said, ‘Lindsey, don’t sell your mother,’” he recalled.Two years later, Mr. Graham called to say he was coming back to town, and could they have dinner? Mr. Brandt said he was eager to see him — and to give him an earful about his friendship with the president. Mr. Graham said sure, and promised to ring back.“I’m still waiting on that call,” Mr. Brandt said. More
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We Still Have to Worry About the Supreme Court and Elections
by Aurelia Butler 25 February 2021, 09:00
#masthead-section-label, #masthead-bar-one { display: none }Campaign to Subvert the 2020 ElectionKey TakeawaysTrump’s RoleGeorgia InvestigationExtremist Wing of G.O.P.AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyWe Still Have to Worry About the Supreme Court and ElectionsThe justices are about to consider whether the Voting Rights Act applies to policies that restrict the vote.Contributing Opinion WriterFeb. 25, 2021, 5:00 a.m. ETCredit…Damon Winter/The New York TimesWhen the Supreme Court on Monday rejected Pennsylvania Republicans’ after-the-fact effort to invalidate late-arriving mailed ballots, it was tempting to suppose that the country’s courthouse doors had finally closed on this most litigated of presidential elections.If only it were that simple.True, in denying the Republicans’ petitions, the court didn’t issue an opinion. Of the four votes necessary to accept a case, these two cases (treated by the court as one) garnered only three. So for the official record, the only outcome in Republican Party of Pennsylvania v. DeGraffenreid and in Corman v. Pennsylvania Democratic Party was “denied.”But the three justices who would have accepted the cases — Clarence Thomas, Samuel Alito and Neil Gorsuch — issued dissenting opinions that provide both a road map and a rationale for the Supreme Court’s future intervention in the quintessentially state matter of how to conduct elections.Remember Bush v. Gore, the case that decided the 2000 presidential election, in which five justices voted to overturn the Florida Supreme Court’s handling of a statewide recount? That decision was based on a theory of equal protection so wacky that the majority opinion insisted that “our consideration is limited to the present circumstances” — that is to say, don’t dare invoke this poor excuse for an opinion as a precedent.That didn’t stop Justice Thomas from citing Bush v. Gore in his dissenting opinion on Monday, and he did so in a particularly shameless fashion. The language he cited wasn’t even from the Bush v. Gore majority opinion, but rather from a separate concurring opinion filed in that case by only three of the majority justices, who argued that the Florida Supreme Court had violated the U.S. Constitution by substituting its will for that of the state Legislature. Justice Thomas invoked that minority portion of the decision to assert that the Pennsylvania Supreme Court was constitutionally out of bounds when, citing both the Covid-19 pandemic and the collapse of the Postal Service as its reasons, it added three postelection days for lawful receipt of mailed ballots.He went on to warn that fraud was “more prevalent with mail-in ballots,” citing as evidence a 1994 Federal District Court case, an article in this newspaper from 2012 and the 2018 Republican ballot-harvesting fraud in North Carolina. Such occurrences, he said, raise “the likelihood that courts will be asked to adjudicate questions that go to the heart of election confidence.” This was the reason, he argued, that the Supreme Court should have taken and decided the Pennsylvania cases before the next election cycle.In his inventory of ballot fraud, Justice Thomas of course could not refer to fraud in the 2020 election, because there wasn’t any. Not a problem:We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud. But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence. Also important is the assurance that fraud will not go undetected.In other words, Justice Thomas would have it both ways: If there was fraud, the court needed to intervene, and if there was no fraud, the court needed to intervene because the fraud might simply be undetected. Despite his disclaimer, the entire structure of his opinion, suggesting that something bad had happened even if no one could prove it, is fairly read as validating the essence of the Trump narrative.Justice Alito, in a separate dissenting opinion that Justice Gorsuch also signed, was more circumspect about the fraud issue. His emphasis was the urgency of stopping state courts from substituting their judgment for that of the legislatures. He said that even though the election was over and late ballots were too few to have made a difference in Pennsylvania’s vote totals, state courts could be expected to behave in the same way in the future unless the Supreme Court used this occasion to stop them.There are several things to note about the Pennsylvania cases. The most obvious is the absence of a fourth vote. In an initial round in the Pennsylvania cases, in mid-October, Justice Brett Kavanaugh had provided Justices Thomas, Alito and Gorsuch with a fourth vote to grant a stay of the state court decision. But a stay requires five votes rather than four. With Amy Coney Barrett not yet confirmed, the eight justices divided 4 to 4, and the stay was denied without opinions. Justice Kavanaugh withheld his vote on Monday, without explanation. Maybe he decided this was a propitious time to offer some cover for Chief Justice John Roberts, who has voted in nearly all the election cases this fall with the three remaining liberal justices.Justice Barrett was also silent. During her confirmation hearing, Senate Democrats had pressed her to promise recusal from any election cases, given that President Donald Trump had said he needed a prompt replacement for Justice Ruth Bader Ginsburg so that he would have a majority of justices voting his way in any election disputes. Justice Barrett did not recuse herself from the Pennsylvania case. Perhaps her decision not to provide the fourth vote her dissenting colleagues needed was a kind of de facto recusal, in recognition that the optics of voting to hear a last-ditch Trump appeal would be awkward, to say the least.The deeper question raised by Monday’s development is why Justices Thomas, Alito and Gorsuch are so intent on what would seem to be a counterintuitive goal for conservatives: curbing the power of state courts. I’m cynical enough to think it has to do with how these three understand the position of state legislatures and state courts in today’s political climate. It’s been widely reported that Republican-controlled legislatures are rolling out bills by the dozens to restrict access to the polls, aimed at discouraging the kind of turnout that produced Democratic victories in Georgia last month. The vote-suppression effort has become so aggressive that some Republicans are starting to worry about voter backlash, according to a recent Washington Post article.State courts, on the other hand, are capable of standing in the way of this strategy. When state high-court judges are elected, as they are in many states, they typically run in statewide races that are not subject to the gerrymandering that has entrenched Republican power in states that are much more balanced politically than the makeup of their legislatures reflects. What better way to disable the state courts in their democracy-protecting role than to push them to the sidelines when it comes to federal elections.So there is no way the Supreme Court is finished with elections. Next Tuesday, as it happens, the justices will hear a crucial voting rights case. The case, from Arizona, asks the court to decide for the first time how Section 2 of the Voting Rights Act of 1965 applies to policies that restrict the vote, through such measures as voter ID requirements.Section 2, which pertains nationwide, is the major remaining provision of the Voting Rights Actfollowing the Supreme Court’s dismantling of the act’s Section 5, in the 2013 Shelby County case. That section barred certain states and smaller jurisdictions from making changes in their election procedures without first receiving federal permission, known as “preclearance.” Section 5 provided vital protection in parts of the country where racism had not released its grip on the levers of power.The issue now is whether Section 2 can be deployed to fill that gap. It prohibits any voting practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” It has typically been used to challenge redistricting plans that dilute the electoral power of racial and ethnic minorities. The question of whether it can be useful in challenging the wave of vote-suppression schemes, which can present complex problems of proof, hands the justices arguably the most important civil rights case of their current term.With the country exhausted and still reeling from the turmoil of the 2020 election and its bizarre aftermath, the urge not to think about elections for a while is powerful. I share it. But it’s a luxury the Supreme Court hasn’t given us, not now, not as long as some justices have more to say.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More
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Thank the Supreme Court, for Now
by Aurelia Butler 17 December 2020, 12:56
AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyThank the Supreme Court, for NowThe justices did the right thing by declining to hear the case brought by red states to overturn the election results. But let’s see what happens down the road.Contributing Opinion WriterDec. 17, 2020Credit…Damon Winter/The New York TimesThe Supreme Court was never going to hear, let alone grant, the request by red-state attorneys general and the White House to overturn the election results in four battleground states that went for Joe Biden. We knew that, we privileged few who could have offered an inventory of the lawsuit’s flaws while standing on one foot. We had not the slightest doubt that the case was a non-starter.Or did we?I spent much of last week, nearly up to the moment on Friday night when the court tossed the Texas case into history’s garbage bin, assuring friends and strangers alike that Texas v. Pennsylvania had no merit whatsoever. Texas had no business invoking the court’s original jurisdiction — seeking to come directly to the Supreme Court and bypassing the lower courts — in order to complain directly to the justices about other states’ election processes. The justices, I added, would never permit themselves to be drawn into such a sorry charade.Many people who emailed me with their questions knew little about the Supreme Court and its jurisdictional quirks, but some were lawyers or avid court-followers who know a lot. Their anxiety was a measure of how much of what we once took for granted has been upended during these past four years. I confess that by the end of the week, the tiniest shadow of doubt had invaded my own mind. And no wonder: The usual inference that even young children are able to draw from experience — “This has never happened before so it’s very unlikely to be happening now” — has proved of dubious utility. We can know all the facts and all the rules, but still, we can’t be sure.In the aftermath, with the electoral votes counted and the justices off on their four-week winter recess, what more is there to say about the justices’ refusal to grant the Trump team and its statehouse enablers their day in court? It’s easy to understand why the response offered by Michigan’s attorney general, Dana Nessel, became the go-to quote in many accounts of the week’s denouement. The court, she said, delivered “an important reminder that we are a nation of laws, and though some may bend to the desire of a single individual, the courts may not.”It’s a comforting thought, one that we needed to hear and yearn to believe. But I think it gives the court too much credit. Texas v. Pennsylvania had the form of a Supreme Court case. But it was a Potemkin village of a case, with the proper Gothic typeface on the front cover but nothing inside that resembled sound legal argument. It’s as if someone filed a case asking the court to exercise its original jurisdiction and declare the moon to be made of green cheese. We would hardly pat the justices on the back for tossing out such a case. More likely, we would shrug and say, “There goes another nut case.”The court receives its share of those among the 6,000 petitions that it whittles down every year to the 65 or so accepted for decision. Of course, those cases don’t arrive, as this one did, with the support of 126 of the 196 Republican members of the House of Representatives. The fact that members of Congress are sometimes called “lawmakers” does not, evidently, bestow on them an actual regard for law.And celebrating the court for its restraint in the election cases may be premature. The 2020-21 term, nearly three months in, is still unfolding. We have yet to learn either the fate of the Affordable Care Act or how much further the court will go to elevate religion over the principle of nondiscrimination, the question presented in a case from Philadelphia. Both cases were argued last month, during the court’s first argument sitting since the arrival of the newest justice, Amy Coney Barrett.The country has learned a bit recently about the court’s original jurisdiction — its power to decide without appellate review certain disputes, including between states — something most lawyers never learn much about, let alone encounter. The last time a so-called original case received this much public notice was probably in 1998, when the court gave New Jersey administrative jurisdiction over nearly all of Ellis Island, the immigrant gateway in New York Harbor that New York had long claimed as its own.The one or two such cases the court decides in a typical year have a certain charm despite their obscurity. This week, for example, the justices decided an original case between New Mexico and Texas. The case, decided in New Mexico’s favor, involved the latest chapter in a long-running dispute over rights to water from the Pecos River. As in most original cases, the court had appointed a special master to look into the problem and recommend how to solve it. Justice Brett Kavanaugh noted in his majority opinion that the special master — the “river master” in this instance — was appointed in 1988 “and he continues to serve in that position” 32 years later. The wheels of the court’s original jurisdiction usually turn very slowly.A new original case on the court’s docket is not likely to remain obscure for long. It promises, if the court accepts it, to bring the justices into culture-war territory. Last February, Texas sued California directly in the Supreme Court over a law California passed in 2016 that prohibits state-paid travel to states with laws that permit discrimination against L.G.B.T.Q. individuals.Texas has a law that permits child-welfare agencies to invoke religious reasons for not placing children with same-sex couples for foster care or adoption. Once Texas enacted that law in 2017, California added Texas to the list of states, now numbering 11, to which it will not subsidize travel by its employees. Texas claims that its sovereignty is violated by California’s policy. California argues in response that its own sovereign interest against subsidizing discrimination is at stake.In June, the justices took the somewhat surprising step of asking the Trump administration for the federal government’s view on the dispute. Early this month, the Office of the Solicitor General filed the government’s brief, urging the court to accept the case and noting that “resolving such conflicts among sovereigns falls within the core of this court’s original and exclusive jurisdiction.” The court will probably announce early in the new year whether it will assume jurisdiction.I’ll end this column with a shout-out to a federal judge who really did stand up for the rule of law in an opinion last week. The question concerns abortion, and whether, given the conditions of the Covid-19 pandemic, the Food and Drug Administration should relax its rule requiring women to visit their doctor’s office in order to get the medication that causes an early abortion. The F.D.A. has suspended the in-person rule for some other medications, but refused requests from medical organizations to do the same for the abortion drug mifepristone.In July, Federal District Judge Theodore Chuang, who sits in Greenbelt, Md., issued an injunction requiring the agency to permit doctors, for the duration of the pandemic, to mail or deliver the medication. In October, the Supreme Court responded to the Trump administration’s request for a stay of the injunction by sending the case back to Judge Chuang, telling him to permit the government to argue among other points, that improvements in the Covid-19 situation since the spring meant that visiting a doctor’s office was no longer a sufficient obstacle to merit relaxing the rule for mifepristone.After receiving the administration’s brief to that effect, Judge Chuang issued a 34-page opinion explaining that while conditions have indeed changed, they have changed for the worse. Noting that the Centers for Disease Control and Prevention, the National Institutes of Health, and the Food and Drug Administration have warned about the increasing intensity of the pandemic, he observed that the administration “has offered no expert opinions from a scientist at one of these agencies or elsewhere in the federal government to contradict the facts and conclusions” about the rising danger.“The fact that individuals are permitted to venture out during a pandemic to restaurants or businesses does not establish that women should be mandated to risk exposure to Covid-19 in order to exercise a constitutional right,” the judge wrote. Of course, the Trump administration promptly returned to the court this week seeking a stay of Judge Chuang’s decision.So yes, let’s give credit where credit is due. Let’s thank the courts — plural — for upholding the rule of law. Let’s celebrate the judges who were there when we needed them. We still do.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More
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‘We’ve Harmed the Senate Enough’: Why Joe Manchin Won’t Budge on the Filibuster
by Aurelia Butler 30 November 2020, 23:49
WASHINGTON — Senator Joe Manchin III of West Virginia, the most conservative member of his party in the Senate, has a message for fellow Democrats hoping to capture the majority and quickly begin muscling through legislation to bring about sweeping, liberal change: not on his watch.With Democrats mounting an intense, long-shot campaign to win two Georgia Senate seats whose fates will be decided in runoffs in January — a feat that would give them control of both chambers of Congress along with the presidency — Mr. Manchin’s unequivocal stance against ending the filibuster means that President-elect Joseph R. Biden Jr. would still need substantial Republican support, and probably Mr. Manchin’s seal of approval, for any major move.In a wide-ranging interview in his office, Mr. Manchin, 73, a former governor, argued that moderates in both parties needed to assert themselves in a new Senate, no matter which party is in charge. He said that his party had lost rural voters because of an ultraprogressive message that scared them, and he criticized Republicans for selling their “souls” in subservience to President Trump.This interview has been edited for length and clarity.Q: It strikes me that you’re going to be playing potentially an extremely important role if we end up with a 50-50 Senate. Would you agree with that?A: I would think the only reason that people are assuming that — you can tell me if it’s true or not — is because of my independent voting. I’m pretty independent. If it makes sense, I go home and explain it. If it doesn’t make sense, I don’t. Sometimes that’s a real strong Democratic issue they’re really happy with, and sometimes it’s a Republican issue they’re happy with. I think I’m the most moderate or centrist — as far as centrist voting — than anybody else in Congress, 535 people.Q: What do you make of the election results over all?A: I just can’t believe that 72 million people were either that mad or that scared of the Democrat Party to vote for what I consider a very flawed individual. Here’s a person who lost 230,000 lives under his watch, basically denounced the science completely because it might hurt him politically, has a lack of compassion or empathy for humans, and denigrates anybody and everybody that does not agree with him. How 72 million people could still walk in and say, ‘Yeah, it’s better than that,’ I just can’t figure it out.That was a sobering thing for me. My state got wiped out this election. So I would say, I’m just looking at myself, I have not been good at my message. I know why I’m a Democrat. And I know that I’ve never seen the Democrat Party forsake anybody.Q: Why do you think West Virginia and the rural areas have gone so red?A: I can tell you what they said: ‘Listen, I just couldn’t bring myself to vote for another Democrat that might give support to the very liberal wing in Washington that I don’t agree with and have nothing in common with. I don’t have anything in common with people who talk about defunding the police. It looks like they’re condoning riots.’ There’s not a member in the Democratic caucus that condones any of this violence or riots or looting. None.I just would hope that people would start looking at the person that they’re voting for and not the party they belong to. A Democrat who’s a moderate-conservative like myself is much needed to bring other people to that moderate position.Q: The Democratic Party thought it could take back the Senate this year, and there’s still a chance that maybe that can happen if you get both of the seats in Georgia. But in order to pass major legislation, you would have to either get some Republican support or kill the filibuster. You’ve long opposed killing the filibuster. Why is that?A: I can assure you I will not vote to end the filibuster, because that would break the Senate. We’ve harmed the Senate enough with the nuclear option on the judges. We’re making lifetime appointments based on a simple majority. The minority should have input — that’s the whole purpose for the Senate. If you basically do away with the filibuster altogether for legislation, you won’t have the Senate. You’re a glorified House. And I will not do that.Q: So there’s no issue where you would agree to end the filibuster? Let’s say there’s a badly needed new coronavirus stimulus package, and the Republicans won’t make a deal.A: No. If we can’t come together to help America, God help us. If you’ve got to blow up the Senate to do the right thing, then we’ve got the wrong people in the Senate, or we have people that won’t talk to each other. You know, I’ve always said this: Chuck Schumer, with his personality, he’ll talk to anybody and everybody. You can work with Chuck. Chuck is going to try everything he can do to try to engage with Mitch again.Q: Are there any other issues where you would draw a line in the sand and stand up to other members of your party?A: I’ve done that. I was that one vote for Brett Kavanaugh. I thought there had to be evidence, and I never saw evidence. The country was in a feeding frenzy. And there was no Democrat that was going to buck that. I said, ‘I’m not going to ruin a person’s life because there’s no evidence.’And wouldn’t it be so befitting if he votes to uphold the Affordable Care Act? God, oh my. Redemption! Is there redemption here? He and I had a long conversation, and I basically said, ‘I’m pleading with you and your inner conscience, whenever this comes before you, I want you to think about 800,000 West Virginians who couldn’t get insurance before because of a pre-existing condition. I want you to think about 160,000 West Virginians that were so poor, they had nothing.’Q: It does seem like Democrats have won the argument on the Affordable Care Act. Six years ago, Republicans were campaigning on blowing up Obamacare; now they’re running ads saying they’re protecting pre-existing conditions.A: Here’s the thing. It’s 16,000 jobs in West Virginia. Three million jobs in America. You want to be a vote that basically eliminates three million jobs? You want to be a vote that wipes out your state? It’s crazy.Q: Is there any chance of a bipartisan group of moderates — you, Senator Susan Collins, Republican of Maine, and some others — emerging that can advance compromise policy in a new Senate?A: We used to have meetings all the time, either in here or her office. We had 10 or 12 or 13, sometimes as many as 20, working through the fiscal crisis or different things, trying to find a pathway forward. We need to be more vocal with our leadership.Q: What does it mean to be a Democrat in 2020?A: To me, it still means the compassion that we have for people, but also the dignity of work. That has to be our driver. It’s the economy, it’s all about the economy. You can’t help anybody if you have no economy and no resources to help them.When it comes to workplace safety, it’s the Democrats everyone turns to because they know they’ll do something. When it comes time to protect people’s jobs and opportunities, it’s the Democrats who will fight to protect that. We’re trying to give quality health care, so people can basically contribute to society. With that, look at the economy that we created: a billion dollars coming in our state. We don’t say that, and we don’t seem to get credit for that.So I’m back on track. I know why I’m here, and I know why I’m a Democrat, and I’m going to fight like the dickens.Q: You did a video with a mix of Democrats and Republicans asking people to respect the results of the election. Why do you think that so many Republicans are unwilling to acknowledge reality and stand up and say, ‘You lost, Mr. President’?A: I don’t know. I don’t know the value of being a U.S. senator, or a governor, or a congressman or anything that’s worth selling your soul or your convictions. These are all good people who for some reason aren’t speaking up. They’re hoping it just kind of goes away.Why rouse up 70 million people that were willing to vote for all his flaws, knowing he’s a very flawed human being? He instilled something, the anger in people, feeling like, ‘Hey, I’m getting the shaft here, I’m getting shorted.’ So, they just want that to kind of go away and see if it calms down rather than putting themselves in the iron. And I understand that. But it would be so refreshing to have a majority of all of my colleagues and my friends on the Republican side say, ‘Listen. It’s time now to move on.’ More

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