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      The US supreme court is facing a crisis of legitimacy | Steven Greenhouse

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      Donald Trump’s rightwing appointees to the US supreme court have insisted that they’re neither “politicians in robes” nor “partisan hacks”, but many Americans strongly disagree about that, and that’s a major factor behind the court’s extraordinary crisis of legitimacy. With the court lurching to the right in recent years, three in four Americans say it has become “too politicized”, according to a recent poll, while just 49% say they have “trust and confidence” in the court, a sharp decline from 80% when Bill Clinton was president.As the supreme court’s new term begins this week, it should be no surprise that many Americans are questioning the court’s legitimacy considering all of the following. Justices Clarence Thomas and Samuel Alito have taken lavish favors from rightwing billionaires with business before the court and then failed to disclose those favors. The court’s conservative majority has often served as a partisan battering ram to advance the Republican party’s electoral fortunes. Mitch McConnell brazenly stole a supreme court seat from Merrick Garland to preserve the court’s rightwing majority. Not stopping there, McConnell and the Republican-led Senate raced to ram through Amy Coney Barrett’s confirmation even after voting had started for the 2020 election.Many ethics experts say Thomas and Alito – supposed guardians of the law – violated ethics laws by failing to disclose the luxurious favors they took from billionaires. Adding to the overall stench, the court still hasn’t adopted an ethics code and acts as if the extravagant favors Thomas and Alito received are in no way a problem. Dismayed by the court’s ethical lapses, 40 watchdog groups have called on Chief Justice Roberts to require Thomas and Alito to recuse themselves in cases with links to their billionaire donor friends.Among many Americans, there’s a growing sense that the Roberts court, with its 6-3 hard-right supermajority, is irrevocably broken. Prominent critics say the conservative justices too often act like partisan activists eager to impose their personal preferences, whether by banning affirmative action at universities, overturning gun regulations or torpedoing President Joe Biden’s plan to forgive student loans.Concerns about the court’s legitimacy multiplied after it issued the blockbuster Dobbs decision overturning Roe v Wade and women’s right to choose. With nearly two-thirds of voters believing that Roe was correctly decided, many Americans complained that the court’s conservatives, in toppling Roe, were imposing their personal religious views on society.On one hand, the justices can assert they have legitimacy – they were duly nominated by a president and confirmed by the Senate. But on the other hand, using other democratic measures, the court seems squarely illegitimate. One might say the conservative supermajority is the product of counter-majoritarianism cubed. First, four of the six right-wing justices were nominated by presidents elected with a minority of the popular vote, and second, they were confirmed by Senators who represented a minority of the nation’s population. Third, these hard-right justices are often deeply out of synch with a majority of the public. They’re far more opposed to abortion rights, business regulations, labor unions and government measures that advance economic and social justice.Back in 1982 when I graduated from law school, many people thought the Rehnquist court was too conservative, but no one questioned its legitimacy. But then came the Bush v Gore ruling in which the conservative majority exerted its muscle in an extraordinary partisan fashion to deliver victory in the 2000 election to George W Bush – and thereby assure continued conservative control of the court.At his confirmation hearing, John Roberts famously said he would merely call balls and strikes as chief justice. But that statement has proven to be flatly untrue, an unfortunate curveball. As chief justice, Roberts has repeatedly gone far beyond calling balls and strikes, often in rulings that increased the Republican’s chances of winning elections. In Citizens United, Roberts engineered an atom bomb of a decision that blew up our campaign finance system and overturned century-old rules that sought to prevent corporations and the mega-rich from having undue sway over our politics and government. In Citizens United, the Roberts court did grievous damage to our democracy, helping transform our nation into a plutocracy where billionaires’ money dwarfs the voices of average Americans.Roberts also led the way in overturning a pivotal part of the Voting Rights Act that required Alabama, South Carolina and other states with a dismal history of racial discrimination to obtain pre-clearance from the federal government before they changed voting rules. Showing how out of touch he was with political realities, Roberts wrote a majority decision that essentially said that racial discrimination on voting matters was a thing of the past and that pre-clearance unduly interfered in those states’ internal affairs, despite their disturbing legacy of racism. That decision was one of supreme judicial arrogance, overturning a law that the Senate passed 98 to 0 and the House passed 390 to 33 to extend the Voting Rights Act for 25 years.Roberts handed the Republicans another huge victory when he led the court in turning a blind eye to egregious gerrymandering. In doing so, Roberts gave a green light to brazen gerrymanders and minority rule, like that in Wisconsin where in a recent election, the Republican party won nearly two-thirds of state assembly seats even though its candidates received just 46% of the vote. The supreme court is supposed to safeguard America’s democracy for the ages, and we should all question the legitimacy of a court that in decision after decision has eroded our democracy in a way that favors one political party. (I should note that Roberts, embarrassed by the court’s headlong lurch to the right, recently sought to shore up the court’s flagging legitimacy by mustering a 5-4 majority to overturn an Alabama voting map that diluted Blacks’ voting power.)Clarence Thomas’s corrupt behavior has raised concerns about the court’s legitimacy to new heights. As ProPublica reported, not only did rightwing billionaire Harlan Crow provide Thomas with a free nine-day yacht vacation in Indonesia, but Crow has ferried him around on private jets, purchased properties belonging to Thomas and his relatives and paid private school tuition for a grandnephew Thomas was raising. Separately, Thomas was flown to California to be the star attraction at a far-right Koch network fundraising weekend. Flouting ethics laws, Thomas disclosed none of this.Thomas seems to see a judge’s lifetime tenure as a license to skirt ethics and disclosure laws as well as a lifetime pass to take lavish favors from whomever he wants, even people with cases before the supreme court. As for Alito, he didn’t disclose that billionaire Paul Singer, who later had cases before the supreme court, paid for his luxury fishing trip to Alaska.For decades, the nation’s law schools have taught aspiring lawyers about the importance of judicial restraint and humility, of not overreaching. At a time when so many Americans are questioning the court’s legitimacy, the court should try all the harder to act with restrain and humility – and caution. Instead, the conservative supermajority, enamored with its power, seems intent on acting boldly and overreaching to stamp its rightwing vision on our constitutional order. These unelected justices seem happy to hobble our democratically elected president, in ways large and small, and in doing so, to dangerously undermine our democracy.
      Steven Greenhouse is an American labor and workplace journalist and writer More

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      As Trump’s presidential chances get better, his legal and financial woes get worse | Lloyd Green

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      Donald Trump laps the Republican field and leads Joe Biden, but the judiciary is unimpressed. Since Tuesday, the 45th president went zero-for-three in New York and DC courtrooms. After all the smoke cleared, his financial assets and personal freedom remain in jeopardy.On Monday, his latest trial begins in Manhattan. He and his adult sons face civil fraud charges. Last Tuesday a New York trial judge found that Trump had defrauded his lenders and insurers. In hindsight, The Art of the Deal bordered on the art of the steal.Earlier in the week, Arthur F Engoron, a state trial judge, reviewed the evidence and determined that Trump had committed fraud. Engoron held that the annual financial statements that Trump had submitted to lenders and insurers “clearly contain fraudulent valuations that defendants used in business”.As a real estate developer, Trump both overvalued and undervalued assets when it suited him, according to the court. He exaggerated his net worth to the tune of billions of dollars. In hindsight, the students at Trump University were not alone. All were fair game in Trump’s eyes.In his decision, Engoron essentially determined that no further trial was needed to ascertain that Trump had illicitly obtained favorable terms on his company’s loans and insurance. “The documents here clearly contain fraudulent valuations that defendants used in business, satisfying [the attorney general’s] burden to establish liability as a matter of law against defendants,” Engoron wrote in a 35-page decision.“The documents do not say what they say; that there is no such thing as ‘objective’ value … ” the judge wrote, characterizing Trump’s arguments. “Essentially, the court should not believe its own eyes.” That did not happen.The decision could ultimately cost Trump his brand. Business certificates of the Trump Organization and other Trump subsidiaries will be cancelled, ditto certificates of companies owned by Trump and his two older sons. In addition, defendants could face up to $250m in penalties.The Trumps aren’t known for their liquidity. Bankruptcies dot their companies’ landscapes.In July 2016, the Guardian reported that a statement filed to the Securities and Exchange Commission by Wells Fargo Securities on Trump’s behalf in 2012 indicated that the real estate developer was then worth roughly only $4.2bn with comparatively few liquid assets, pegged at more than $250m.To be sure, that is a lot of money, but a bit on the low side given Trump’s present legal crush. Indeed, in a lawsuit Trump brought against the journalist Tim O’Brien for raising the possibility that he was not a billionaire, Trump acknowledged that his asset valuations were not objective measures.“You said that the net worth goes up and down based upon your own feelings?” Trump was asked in a deposition.“Yes, even my own feelings, as to where the world is going, and that can change rapidly from day to day,” he replied.On the campaign trail in 2016, Trump has touted a net worth north of $10bn.Still, Tuesday’s ruling wasn’t the final word. Things grew worse on Thursday when an intermediate appellate court refused to bar the case from proceeding to trial. “It is ordered that the motion for a stay of trial is denied,” the order read.One day earlier, Tanya Chutkan, the judge presiding over the special counsel’s election interference case, had refused to disqualify herself. The basis of that unsuccessful motion was Team Trump elevating Chutkan’s characterization of positions taken in separate January 6 cases as her own views.“The court has never taken the position the defense ascribes to it, that former ‘President Trump should be prosecuted and imprisoned,’” Chutkan stated.It is unlikely that any of these developments will impact Republican primary voters or the Republican field. Since Trump was first indicted in late March, his popularity among Republicans has only grown. At the same time, his leading rivals won’t raise his legal woes as an issue. They know the base wouldn’t stand for it.Ron DeSantis, Tim Scott, Nikki Haley and Vivek Ramaswamy have internalized that the Republican party’s machinery belongs to Trump. When news broke in March of Trump’s indictment, Florida’s governor reflexively rushed to his defense. In the moment, he accused Alvin Bragg, Manhattan’s district attorney, of pushing an “un-American” political “agenda”.DeSantis also stood ready to fight Trump’s extradition to New York, a meaningless gesture. Trump voluntarily surrendered days later.These days, there is nothing they can do other than bleat like sheep and wait. Even Brian Kemp, Georgia’s governor and Trump nemesis, knows the score. He pledged to back Trump if he is the Republican nominee. The self-abasement continues.
      Lloyd Green is an attorney in New York and served in the US Department of Justice from 1990 to 1992 More

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      Letitia James: the fearless attorney general threatening Trump’s business

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      New York attorney general Letitia James has never shied away from taking on powerful adversaries – from the National Rifle Association to former New York governor Andrew Cuomo.On Monday she will take on her biggest case yet: a fraud trial that threatens the very foundation of Donald Trump’s New York real estate empire.Critics have accused the 64-year-old career prosecutor of using her office, with 1,700 staff and over 700 assistant attorneys general, for political purposes. To others, the Democrat is a heroic figure: the first woman elected as New York’s attorney general and the first Black person to serve in the role. A fearless prosecutor who has taken on cases others would walk away from.Like Trump, “Tish” James was born and raised in New York City. It’s about the only thing they have in common. Raised with her seven siblings in Brooklyn, James attended public schools in the city before getting her law degree at Howard University in Washington DC.She started her law career as a public defender before entering New York politics as a councilmember and then as public advocate, the first Black woman to hold the watchdog role. James’s passions were clear from the start – she filed a record number of suits on behalf of tenants, seniors and people with disabilities. James became New York state attorney general in 2018.Few think her ambitions stop there. Top state prosecutor has often been the jumping off point for a run for New York’s governorship, which James briefly attempted last year.The Trump trial will thrust James further into the spotlight and she is off to an impressive start. James has already claimed one victory in the case. Last week, the New York judge Arthur Engoron ruled the real estate developer had committed fraud for years as he built his empire by inflating the value of his holdings. In an early win for James, Engoron revoked the business licenses of Trump and his adult sons, Donald Trump Jr and Eric Trump, essentially barring them from doing business in the state.This week, Engoron will hear arguments on a potential fine, which could be at least $250m.“I come from a long line of very strong, tough women. We stick to our principles and stand up for what we believe in, which is fundamental fairness, which is my raison d’être,” James told Elle Magazine in 2017.As attorney general, she has worked for more funding for pre-trial services, the reform of bail laws for minor offenses, treatments for the mental health crisis, cracking down on ghost guns and defending the state’s gun laws restricting the public carrying of firearms.James has also said she wants to prioritize antitrust investigations and consumer protections, and focus on reducing tenant evictions amid skyrocketing rents in the city and state.Last year, James suspended her campaign for New York governor, saying she wanted to “finish the job” with her ongoing investigations, including overseeing a sexual harassment investigation into former governor Cuomo that led to his resignation, an inquiry into the NRA and fraudulent financial practices of the former president.In interviews during her campaign, James said that not pursuing evidence of wrongdoing by Trump or the NRA would have been a “dereliction of my duty” and rejected claims that her legal pursuits were not on behalf of New Yorkers but her “own personal ambitions”.skip past newsletter promotionafter newsletter promotion“I make no apologies, because this is who I am, and this is what I do,” James added.On the same day that she ended her campaign, reports said she was looking to sit Trump for a deposition as part of her civil investigation into his business practices. Trump has called James “a renegade and out of control prosecutor”, dismissed the case as “crazy” and a “witch-hunt”, and invoked his fifth amendment right against self-incrimination 400 times.Trump maintains his innocence and his lawyers are appealing the pre-trial ruling. But outside observers believe this case will be a real test of Trump’s – often successful – bluster.Andrew Lieb, a real estate attorney and legal political analyst, says James is doing no more or less than what attorneys general do. The fact that Trump received a pre-trial ruling in his fraud trial shows just how clear the case against him was.“He was so outrageous, pompous and immune to order and business practices that someone had to do something about it. It was like spitting and saying it’s raining,” Lieb said. “It’s not like he took a $10m property and said it was worth $11m. He took a $10m property and said it was worth over $100m.”James, he says, will go down as an effective attorney general. “She’s effective in that she won. No one remembers how you played the game, they just remember that you won.” More

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      Trump official Jeffrey Clark loses bid to move Georgia trial to federal court

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      A federal judge on Friday denied a request from Jeffrey Clark, the former Trump justice department official, to transfer from state to federal court his criminal case for conspiring to overturn the 2020 election in Georgia, saying he had failed to prove he had been acting within the scope of his official duties.The ruling from the US district judge Steven Jones, which came a day after Donald Trump decided against making a similar request, means Clark will be tried in Fulton county superior court – with its mainly Democratic jury pool – unless the ruling is overturned by the 11th circuit appeals court.Clark was charged last month alongside Donald Trump and top allies in the sprawling Racketeer Influenced and Corrupt Organizations (Rico) Act case brought by the Fulton county district attorney, Fani Willis, because he had drafted a letter in December 2020 falsely claiming the justice department was investigating supposed election fraud in Georgia.The letter was never sent to Georgia officials and Clark had argued he had been acting within the scope of his official duties as the acting US assistant attorney general for the civil division when he drafted the memo, making him immune from state prosecution under a special federal law.But the judge rejected his arguments in a 15-page opinion that concluded the available evidence cut against him and his efforts to try to show he had satisfied a three-part test to determine whether he was eligible to move his case to federal court.“The letter pertained to election fraud and election interference concerns that were outside the gamut of his federal office. Consequently, Clark has not shown the required nexus for federal officer removal,” Jones wrote.Clark made two specific arguments at an evidentiary hearing last week: first, that he had been permitted to draft legal memos as the top official in the civil division, and second, that as an assistant attorney general, he could do work for any of the justice department’s sub-sections.The judge concluded that Clark’s first argument failed because election-related matters have never been in the purview of the civil division, which is involved in defending lawsuits that are filed against the United States or officers of the federal executive branch.The only witness to testify at the hearing, Jody Hunt, Clark’s predecessor as head of the civil division, also disclaimed Clark’s argument and affirmed that anything with respect to election irregularities would be handled by the civil rights division or the criminal division.The judge wrote that deposition transcripts showed that even Clark’s own assistant who helped him draft the letter, Kenneth Klukowski, had recounted to prosecutors he had been “shocked” at the assignment because “election-related matters are not part of the civil’s portfolio”.Clark’s lawyer had responded at the hearing that Clark had been in a unique position in 2020 because he defended the vice-president, Mike Pence, in an election-related lawsuit. But the judge dismissed that notion, saying Clark had to defend that suit because Pence was being sued as an actual federal officer.skip past newsletter promotionafter newsletter promotionJones also entirely rejected Clark’s second argument – that he had been acting within the scope of his justice department role because Trump could have delegated him authority to write the December 2020 letter – because he had failed to show any evidence that had actually happened.The contention from Clark’s lawyer Harry MacDougal at the hearing was that Trump had “ratified” Clark to look at election fraud allegations because he had been summoned to discuss the matter at an Oval Office meeting on 3 January 2020.However, the judge noted it was unclear whether Trump had expressly given Clark authority to write the letter. “Other than his counsel’s own vague and uncertain assertions, the Court has no evidence that the President directed Clark to work on election-related matters,” Jones wrote.“Instead, the evidence before this Court does not show the President’s involvement in this letter specifically until the January 3 meeting where the President decided not to send it to the Georgia officials,” Jones wrote, adding: “Any such delegation … would have been outside the scope of DoJ more broadly.” More

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      Prosecutors accuse Trump of new effort to delay classified documents trial

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      Special counsel prosecutors accused Donald Trump of trying to delay the classified documents case to within three months of the 2024 election in a court filing late on Wednesday, suggesting his lawyers had attempted to weaponize the complex government secrecy rules to upend the trial schedule.The alleged delay effort from Trump – whose overarching legal strategy is to push back his criminal cases, potentially until after the election because he could have them dropped were he to win – centers on a proposal from his legal team to extend pre-trial deadlines.The Department of Justice prosecutors said in their filing that they were prepared to accept a short extension in the case after the presiding US district judge, Aileen Cannon, allowed Trump to ask for more time to prepare his next legal briefs following earlier delays in the pre-trial process.But they sharply objected to a proposal from Trump to delay not just one deadline but the entire pre-trial schedule, saying it amounted to a veiled attempt to re-litigate the trial date set for May 2023.“The Court invited the defendants to file a ‘motion to extend deadlines’,” the 15-page filing said. “Instead, defendant Donald J. Trump, joined by his co-defendants, filed a motion that threatens to upend the entire schedule established by the Court.”At issue is the complex nature of the US government’s own rules for using classified documents at trial, known as Cipa, short for the Classified Information Procedures Act that governs how the materials can be introduced in national security cases.Trump was charged with retaining national defense information – including US nuclear secrets and plans for US military retaliation in the event of an attack – and obstructing the government’s efforts to retrieve them, which is why the case is being governed by Cipa rules.The complaint from prosecutors in the office of Jack Smith, the special counsel, is that Trump’s lawyers are attempting to weaponize Cipa section 4, where the judge has to decide whether to allow the government to redact the classified documents that need to be turned over in discovery.Trump’s lawyers know the judge has to rule on the proposed redactions or substitutions before those classified documents can be turned over to them, prosecutors contended, and appeared to be trying to delay that entire process in order to push back the trial date further.The complaint sets up another significant early test for Cannon, a Trump appointee who came under widespread criticism last year during the criminal investigation after she issued a series of favorable decisions to the former president before her rulings were struck down on appeal.A spokesperson for the special counsel declined to comment. A Trump spokesperson did not immediately respond to a request for comment.At its core, prosecutors objected to Trump lawyers’ claim they could not start Cipa section 4 before they had reviewed all of the discovery, and their attempt to create a new Cipa section 4 process that involved sequential court filings from both sides instead of doing it simultaneously.skip past newsletter promotionafter newsletter promotion“The defendants provide no examples of where a Court has handled Section 4 briefing on a responsive briefing schedule as defendants propose – and the Government is aware of none,” the filing said of the proposal.Prosecutors argued that Trump only had a number of potential defenses to the charge that he retained national defense information, and his lawyers did not need to go through all of the discovery to come up with their broad defense arguments for the purpose of filing a section 4 brief.The defenses would come down to a handful of options, prosecutors argued: Trump was authorized to posses those documents, the documents did not contain national security information, the documents were not “closely held”, or that Trump did not wilfully retain them.“The nature of the material the Government will propose substituting and the limited redactions it will propose are unlikely to require finely detailed defense theories in order for the Court to determine the helpfulness of the material or the adequacy of a substitution,” the filing said.Prosecutors added that even if Trump did need to review more discovery than usual, most of the unclassified discovery had already been produced, including more than 200 witness interview transcripts as well as all of the surveillance footage at Trump’s Mar-a-Lago club.The production of the classified discovery was also almost complete, the prosecutors said, and the only materials not turned over were five classified documents that were so highly sensitive that they could not be stored with the rest of the materials in a secure facility in Florida. More

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      US prison labor is cruel and pointless legalized slavery. I know first-hand | Dyjuan Tatro

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      Almost immediately after I was sent to prison, I was assigned to a “program”, the term American prison officials use for a job. I was to sweep the prison hallways, alongside roughly 30 other men. Together we pushed brooms across gray corridors hour after hour, day after day.No matter how many hours I worked, I couldn’t afford toilet paper, soap or toothpaste. We had to pay for basic hygiene products at exploitative markups, way more than they cost in free society, and I was paid 10 cents an hour. To survive in prison, even with a full-time job, I was forced to rely on family, who struggled to support me financially.There’s a misleading narrative pushed by officials about prison labor, one that falsely frames prison jobs as rehabilitative. Nothing could be further from the truth.In prison, my work was meaningless and dehumanizing. It conveyed no new skills, taught me no life lessons and earned me next to nothing. It did not build my résumé, prepare me to navigate workplace relationships or teach me how to budget. It served only to devalue my labor and person. Prisons are about punishment, not rehabilitation.I had no choice in whether I went to work or not – and there were no sick days. If I didn’t go, I would be locked in my cell for 23 hours a day. And as little as it was, I needed the pay.About halfway through my sentence, I had the chance to apply to the Bard Prison Initiative (BPI), one of the most renowned and rigorous college-in-prison programs in the US. The opportunity changed the trajectory of my life. Graduating from Bard College with my bachelor’s degree gave me something that no one could take away: an education. It was a hard-won prize, especially given the system’s intent to let me languish.Sitting in those classrooms better prepared me for work outside. Engaging with other students prepared me to later engage with co-workers; interacting with professors prepared me to deal with supervisors. Alongside classes in philosophy, political economy and differential equations, I was learning valuable social and professional skills that were radically at odds with the reality of prison.It costs New York around $70,000 a year in taxpayer money to imprison someone. It costs the BPI about $10,000 a year to educate an incarcerated student. New York’s recidivism rate is 40%, while graduates of the BPI and similar programs recidivate at only 4%, a tenfold decrease. Yet, despite its clear positive record, only 300 of New York’s 30,000 incarcerated people are enrolled at the BPI in any given semester. I was one of a lucky few.Prisons are designed to warehouse, traumatize and exploit people, then send them back home in worse shape than when they entered the system. Despite having worked every day, the vast majority of people are released with no job experience, no references and no hope. Some would take this to mean that the system is failing. And it is with regard to public safety, rehabilitation and justice, but it’s horrifyingly successful at two things: guaranteeing jobs for some and perpetuating slavery for others.Over the years, I learned that prison officials were not interested in giving us fruitful educational and job opportunities that allowed us to go home and stay home. The reality is much more sinister. Prisons are a job program for officers that requires us to keep coming back.skip past newsletter promotionafter newsletter promotionYou may be familiar with company towns and coal towns; in the US, we have prison towns, too. In New York, all state prisons were built upstate as economic stimuli in rural districts and failing farm communities. The facilities imprison predominantly Black and brown inner-city residents who toil under a class of white overseers. I remember a guard bending over to shackle me one day and saying, “I just want to thank you for being here because I’m too old to be digging ditches.” My body and my labor made him an easy living. The parallels to slavery are stark and visceral.Prison officials ignore these critiques and justify their practices by pointing to the exception in the 13th amendment of the US constitution – negotiated as a concession to slave states – that allows slavery “as a punishment for crime”. This exception enables states like Texas to force incarcerated people, mostly Black men, to pick cotton – even at a net loss to the state, because cruelty is the point.Thankfully, a new abolition movement is working to end this exception, and I hope for its success. Over the past few years, seven states – from Tennessee and Alabama to Oregon and Vermont – have voted to end the exception in their state constitutions. And earlier this year, just ahead of Juneteenth, Senators Jeff Merkley and Cory Booker and Congresswoman Nikema Williams introduced the abolition amendment in Congress to end the exception in the US constitution and outlaw the enslavement of incarcerated people. Today it has bipartisan support.After 12 years, I was released with $40 and a bus ticket. The state did not even give me an ID. But I was one of the lucky ones who went home with a college degree. Without it, I would probably be back in prison today. I understand the value of giving incarcerated people real opportunities. Enslaving people is diametrically opposed to it. Nothing good can come from it.
      Dyjuan Tatro is the senior government affairs officer at the Bard Prison Initiative, where he focuses on expanding college access for incarcerated people, and an #EndTheException ambassador More

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      ‘You want to think America is better’: can the supreme court be saved?

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      When Dawn Porter studied law at Georgetown University in Washington, she would pass the US supreme court every day. “You walk by the marble columns, the frontage which has inspirational words, and you believe that,” she recalls. “You think because of this court Black people integrated schools, because of this court women have the right to choose, because of this court, because of this court, because of this court.”Its profound role in American life is chronicled in Deadlocked: How America Shaped the Supreme Court, Porter’s four-part documentary series that traces the people, decisions and confirmation battles that have helped the court’s relationship with politics turn from a respectful dance into a toxic marriage.Porter, 57, an Emmy award winner who maintains her bar licence, remembers first year common law classes when she studied the court’s landmark decisions. “Like most lawyers I have a great admiration for not only what the court can do but its role in shaping American opinion as well as American society,” she says via Zoom from New York, a poster for her film John Lewis: Good Trouble behind her.“If there’s a criticism of the court in this series, it comes from a place of longing, a place of saying we can’t afford for this court to lose the respect of the American people. There’s going to be decisions over time that people disagree with. That’s not unusual. What’s unusual is how cases are getting to the court, how they’re ignoring precedent and the procedures by which the decisions are getting made. That’s where I would love people to focus.”Deadlocked offers a visual montage of the court winding back in time: women and people of colour gradually disappear in favour of an all-white, all-male bench. They include Chief Justice Earl Warren, who heralded an era of progressive legal decisions such as Brown v Board of Education, a unanimous 1954 ruling that desegregated public schools.Porter says of the paradox: “One of the things we were thinking is, isn’t it ironic that this all-male, all-white court is responsible for Brown v Board and for Roe v Wade [which enshrined the right to abortion] and you have the right to an attorney, which is Gideon v Wainwright, and you have the right to have your rights read to you. Yet when we have the most diverse court we’ve ever had, we’re seeing a rollback of some of these civil rights.”In 1967, President Lyndon Johnson nominated the civil rights lawyer Thurgood Marshall to be the first Black man to serve on the court. A group of southern senators, almost all Democrats, sought to exploit riots in the major cities and fears about crime to try to derail his nomination. Marshall endured five days of questioning spanning three weeks and was finally confirmed by the Senate in a 69-11 vote.There have only been two African American justices since: conservative Clarence Thomas and liberal Ketanji Brown Jackson. The first woman to sit on the court was Sandra Day O’Connor, a moderate conservative appointed by the Republican president Ronald Reagan.“It takes a century of supreme court jurisprudence before we get a woman on the court. There’s an irony there that we have the current composition of the court and yet we have probably one of the most least hospitable courts to individual rights.”The court’s relationship with public opinion has been complex, leading at some times, following at others. In 2015, it ruled that same-sex couples had the right to marry. The 5-4 decision removed same-sex marriage bans in 14 states – an acknowledgment of shifting attitudes and the rise of the LGBTQ+ rights movement.Porter observes: “The court doesn’t have an army. It doesn’t even have PR or a media representative. The supreme court can’t change public opinion but what the court can do is either set an aspirational goal or it can reflect where the country is. For the gay marriage decision, that’s where the country was. The country was supportive of same-sex marriage and the court ratifies that public opinion and makes it law.”Opinion polls show that a majority of Americans have also consistently supported reproductive rights. In Roe v Wade in 1973, the court voted 7-2 that the constitution protects individual privacy, including the right to abortion. Porter observes: “It’s not that controversial a decision by that time. More than half the states had reproductive rights access so it was only going to affect some of the states.”At the time, Christian evangelicals were not opposed to abortion rights. “Evangelicals historically were pro-choice. This is where politics comes in and is on this collision course with the judiciary. Evangelical leaders like Jerry Falwell realised, oh, wait, abortion is a wedge issue and there are all these Catholic voters. So they come together.“What the evangelicals want is tax exemption for religious schools. The Catholics don’t want abortion and together they’re a powerful voting bloc. They not only say we’re going to try and get the supreme court to change but we’re going to elect a president who is going to help us.”These religious groups duly turned against the Democratic president Jimmy Carter, an evangelical Sunday school teacher, in favour of the divorced former Hollywood actor Reagan. Porter continues: “What you see is kind of politics at work. How can we get power? How can we get what we want? How can we form alliances?“That alliance is very powerful because Reagan ends up having so many appointments to the court and you see the rightward shift of the court. These kinds of monumental changes don’t happen quickly but building blocks are constructed in these earlier years, like in the 80s, and they’ve continued to this day.”The court’s role as a political actor was never more stark than in 2000, when its ruling in Bush v Gore terminated the recount process in Florida in the presidential election, effectively handing the White House to George W Bush. Porter notes: “It’s 5-4 to step in and stop the voting to determine who would be the next president of the United States. Sandra Day O’Connor later said she regretted voting with the majority.“Also, interestingly, Justices John Roberts, Brett Kavanaugh and Amy Coney Barrett are all working with the Republicans on the side of soon-to-be President Bush. Is that illegal? No. Is it impermissible? No. Is it unethical? No. Is it interesting? Yes!” Porter says with a laugh.But the ever-growing politicisation of the court became turbocharged – perhaps irreversibly – by the death of the conservative justice Antonin Scalia in 2016. Mitch McConnell, then Republican majority leader in the Senate, committed a professional foul by refusing to act on President Barack Obama’s nomination of Merrick Garland to replace him, insisting that the seat remain vacant in an election year.Step forward Donald Trump, the Republican nominee for president who released a list of 11 potential supreme court nominees based on advice from conservative groups such as the Federalist Society and the Heritage Foundation. It was an unprecedented political masterstroke that comforted religious conservatives troubled by his unholy antics and past support for abortion rights.skip past newsletter promotionafter newsletter promotionMcConnell is seen in Deadlocked asserting that “the single biggest issue that brought nine out of 10 Republican voters home to Donald Trump … was the supreme court”. This clip is from an address he made in 2019 to the Federalist Society, which has played a critical role in tilting the court to the right.The group was founded in 1982 under the mentorship of Justice Antonin Scalia to challenge what conservatives perceived as liberal dominance of courts and law schools. Among its most prominent members was Leonard Leo, who oversaw the rise in its influence at the expense of the more liberal American Bar Association.Porter says: “Leonard Leo is one of the most fascinating and yet not widely known political actors in our contemporary history. The Federalist Society realises: we can have influence in grooming judges and who’s getting appointed to the lower courts. Leonard Leo takes that on steroids and eventually becomes the person who former president Trump looks to create his list of potential supreme court nominees.“In recent years Leo has secured a multibillion-dollar war chest in order to continue to groom and populate the lower courts with very conservative ideologues. Amy Coney Barrett is a product of that. Kavanaugh is a product of that. All the greatest hits are with Federalist Society influence.”Sheldon Whitehouse, a Democratic senator, has called it “the scheme”: a decades-long plot by rightwing donor interests to capture the supreme court and use it to accomplish goals that they cannot achieve through elected officials. The Federalist Society is a receptacle for “dark money” – millions of dollars in anonymous hidden spending.Porter adds: “The problem with private entities like the Federalist Society having so much influence and power is that there’s no insight into the source of their funds. We certainly do know that it’s not a coincidence that some of the interests of some of the most conservative folks seem to be being served by these appointments.”Last year the rightwing forces achieved their greatest victory with a decision that once seemed unthinkable: the overturning of Roe v Wade after nearly half a century. Most Republican-led states moved to restrict abortion with 14 banning the procedure in most cases at any point in pregnancy. About 25 million women of childbearing age now live in states where the law makes abortions harder to get than they were before the ruling.Porter had wanted to believe the court she admired as a student was a bulwark in defence of individual liberties. “Every pundit, every organisation, said Roe is going to be overturned and yet it was still hard to believe that 50 years later, when so many people rely on that decision, that it actually could be overturned.“I will say it really did personally impact my feeling about the court. Reading the decision, there’s ignoring of history. It’s not a well-written opinion, it’s not coherent, and that’s really hard. We all need to believe in things and we all need to believe that these are the smartest people and that they’re able to put aside their personal beliefs and that didn’t seem to be the case.“It was more than disappointing. It’s somewhat comforting that we have such a strong reaction to it but I see the cases of the women who have been so harmed by this decision. There are people have been forced to carry pregnancies to term that were not viable, people who just stay pregnant who didn’t want to be pregnant. You want to think America is better than that.”As the final episode of Deadlocked acknowledges, the court faces a crisis of legitimacy. A series of extremist rulings out of whack with public opinion have come at the same time as ethics scandals involving the rightwing justices Thomas and Samuel Alito. The share of Americans with a favourable opinion of the court has declined to its lowest point in public opinion surveys since 1987: 44% favourable versus 54% unfavourable, according to the Pew Research Center.Porter adds: “Every single person we spoke to for this series regardless of their political background – and we have Scalia’s former clerk, who wrote the decision broadening access to guns; we have Ted Olson, who argued Bush v Gore for President Bush; we have Don Ayer, who was a Reagan justice department official – is concerned about the reputation of the court and what the future holds if the court continues to chart its own path and not realise the delicate balance of our tripartite system of government.“What if the court sides with a Trump who refuses to accept the results of the election next year? That’s what we’re talking about and a lot of the people who did the insurrection are still out there; we didn’t arrest them all. We’re in uncharted waters. It’s not a game and I don’t think anyone wants to actually put this to the test of: will our democracy survive?”
      Deadlocked: How America Shaped the Supreme Court premieres on Showtime on 22 September with a UK date to be announced More

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      Why is Georgia prosecuting leftwing activists with the same law as Trump? | Akin Olla

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      Within weeks of each other, Donald Trump and 61 leftwing activists were indicted under criminal conspiracy laws in Georgia. What may feel like a victory for centrism and justice is actually a dangerous conflation.The protesters are part of the Stop Cop City movement, fighting to prevent the construction of a new police urban combat training facility over what the Muscogee Creek people call the Weelaunee forest outside of Atlanta. One protester has already been killed by police, with an independent autopsy detailing that they probably had their hands up when they were shot 57 times.Georgia has expansive anti-racketeering laws, originally created to fight the mafia; the state’s Republican attorney general, Chris Carr, has decided to stretch these laws far past what could reasonably be considered their intended purpose. While the former president was indicted for an alleged conspiracy to literally overthrow the government, many Stop Cop City protesters are facing similar charges for such acts as receiving reimbursements for glue and food and raising money to bail others out of jail.The indictments against the protesters are a naked attempt to destroy a grassroots social movement. Worse, they create a precedent that will allow both Republicans and Democrats to further their separate tracks of crushing any public opposition to government policy.Cop City was first planned in 2017 but only gained steam following the 2020 Black liberation protests. Instead of addressing the myriad of issues that Atlanta residents face, the city backed the giant police and fire training facility, which was proposed by a rightwing police foundation funded by corporations like Home Depot and Wells Fargo. A large network of organizers and activists, from faith and environmental groups to socialist parties and anarchist collectives, got together to protect the forest. They used a range of tactics, from occupying the land to knocking on the doors of neighbors to inform them about the construction.It was the occupations of the forest and disruption of construction, traditional tactics of environmentalists, that triggered a police raid that led to officers shooting 26-year-old Manuel “Tortuguita” Terán. Police claimed Tortuguita shot first, wounding police officers, but one autopsy denies that Tortuguita could have been holding a gun and an officer was recorded on video during the incident saying: “You fucked your own officer up,” implying that the police may have been in a friendly-fire incident.Following Tortuguita’s death, organizers mobilized hundreds of people to city hall to speak in a record-breaking 14 hours of public comment, but the Atlanta city council ignored the anti-Cop City groundswell and went on to approve $67m of public money for the project.A coalition within the movement switched strategies and moved to put the construction to a referendum; thus far the coalition has submitted petitions signed by over 100,000 Atlanta residents – a gobsmacking fifth of the entire city. In response, the city has prepared a series of roadblocks to ensure that no resident will have a say in this process, a move that some residents are calling voter suppression.The indicted Stop Cop City protesters are being charged under Georgia’s Racketeer Influenced and Corrupt Organizations (Rico) act, an extension of a federal law created under Richard Nixon to crush the Italian American mafia. For those unfamiliar with The Sopranos and the trials and tribulations of the mob, Rico statutes target the unique structure of the mafia, a hyper-centralized organization with an insulated leadership that can’t be caught up in street-level crimes. The laws allow for different crimes to be linked together and used to prosecute an entire organization at the same time, with increased charges for everyone involved. These increased charges also make it easier to coerce lower-level mobsters to snitch on their higher-ups.While Trump’s alleged conspiracy – a centralized operation with vague attempts to obscure the leadership – fits the bill, the Stop Cop City movement is the opposite. It is neither centralized nor a criminal organization. While some activists have engaged in acts of sabotage to protect the forest, it is absurd to consider their activities as constituting a criminal organization, unless you consider all protest movements illegal. But these indictments basically do just that – tying together acts like passing out flyers, providing legal support and literally writing the letters “ACAB” into an amorphous nonsensical conspiracy.This, of course, has been the unfortunate trajectory of such indictments and anti-protest laws since the mass protests following George Floyd’s murder in 2020. Because Georgia prosecutors can’t name a clear command structure like one might do with the mob, the indictment of the Stop Cop City activists is focused on the alleged anarchist ideology of the protesters and their desire to create a better world.The indictment lists things like “mutual aid”, essentially inter-communal charity, as if they are acts of terrorism or equivalent to shaking down store owners for protection. In the words of Anthony Michael Kreis, a constitutional law expert interviewed by the New York Times, the document “seems like an indictment of an ideological disposition”.It is hardly surprising when rightwing forces use the law to shut down progressive protest; what is unsettling here is the complicity of supposedly liberal Democrats. Unfortunately the Stop Cop City indictments fit neatly with the increasingly reactionary and anti-democratic behavior of Democratic politicians in Atlanta and elsewhere. (Recall Joe Biden’s past comments about “antifa” and his desire to increase funding for police.)There is a growing conspiracy to use violence and coercion to take over the country, but the instigators are figures of the right like Trump and Ron DeSantis and organizations like the Proud Boys. As prices and temperatures rise, leftwing movements will be necessary for our collective survival. Framing progressive activists as equivalent to gangsters and rightwing insurrectionists is a dangerous path that will birth a system even worse than our already cracking capitalism.
      Akin Olla is a contributing opinion writer at the Guardian US More