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      Americans want to join unions. The supreme court doesn’t like that | Moira Donegan

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      Their contract had expired, so the local teamsters, drivers of concrete-mixing barrel trucks for a firm called Glacier Northwest, in Washington state, decided to walk off the job. Like all strikes, the point of the work stoppage was to inflict financial consequences on a recalcitrant management side: to show the bosses that their employees were united in shared interest and mutual protection and that it would cost them less money to negotiate in good faith and agree to the workers’ demands than to continue to fight the union for less favorable, more exploitative conditions. When the teamsters began their strike, 16 of the barrel mixing trucks were full. They drove them back to the Glacier Northwest lot and left them there.But if you don’t mix concrete, it hardens, and becomes useless. If this happens in a barrel truck, sometimes that can cause damage to the truck, too. When Glacier Northwest realized that their teamster employees had gone on strike, non-union workers were able to remove the concrete over the course of five hours, averting damage to the trucks. But they lost the use of all the concrete that had been mixed in those 16 barrel trucks that day.This injury – the loss of 16 trucks’ worth of concrete to a regional construction supplier in the north-west – is the pretext that the US supreme court used this week to weaken the National Labor Relations Board and deal a blow to the right to strike.In the case, Glacier Northwest v International Brotherhood of Teamsters, eight of the court’s nine justices found that management could sue the union for the damage caused to their property during the strike. Only Justice Jackson dissented. In addition to encouraging companies to sue their workers over strikes and ensuring that unions will pre-emptively avoid strikes or adopt less effective tactics to protect themselves from liability, the ruling also opens a wide new avenue for union-busting litigators to evade the authority of the National Labor Relations Board – the federal body that was created by Congress specifically to handle such conflicts and enforce workers’ rights.The decision, then, furthers two of the supreme court’s major long-term projects: the erosion of labor protections, and the weakening of administrative agencies, whose expertise the court routinely ignores and whose authority the justices seem determined to usurp for themselves.It might risk reinforcing the dramatically low standards for the supreme court’s behavior to note that the majority opinion, authored by Amy Coney Barrett, did not represent the worst of all possible outcomes. Barrett included some limiting language in her writing that preserves the possibility of binding NLRB oversight in these lawsuits. She clarified that unions do have some right to time their strikes in order to maximize financial damage to management – a move that would protect, say, the right of Amazon workers to initiate work stoppages during the holiday shipping rush, as they did last year. The gestures toward a continued right to strike appear designed to secure the votes of Elena Kagan and Sonia Sotomayor, who joined the majority, and to dilute the power of Samuel Alito, Neil Gorsuch and Clarence Thomas, who wanted to gut NLRB authority over strike-related litigation entirely.But it is important to consider Glacier Northwest in context: in recent years, the court has made it easier for companies to bar their employees from bringing class-action lawsuits, made it harder for public-sector unions to collect dues and struck down a California law that allowed unions to recruit agricultural workers on farms. The new ruling, which finds that strikes are often illegal when they lead to damage to employers’ property, only furthers their long project of making it harder for workers to join a union, easier for employers to break one up, and more legally risky for workers to take the kinds of action that can actually elicit concessions from the boss.It will get worse. If they get their way – a less procedurally complicated case, a more amenable vote from Roberts, Barrett or Kavanaugh – the court’s most extreme conservatives will shape a bleak future for American labor. Their aim is to all but eliminate rights to organize and strike that are enjoyed by people in the most important, foundational and meaningful part of their public lives: the workplace.“Workers are not indentured servants, bound to continue laboring until any planned work stoppage would be as painless as possible for their master,” Jackson wrote in her dissent. But that is the labor settlement that at least three members of the extremist conservative wing hope to enact. There is only one direction that this court’s labor jurisprudence is going.The ruling comes at a moment when the American labor movement, long dormant and defeated, is experiencing something like a small resurgence, however timid and sporadic. According to data from the Bureau of Labor Statistics, the number of unionized workers grew last year in both the public and private sectors, with the biggest increases in sectors like transportation and warehousing, arts and entertainment and durable goods manufacturing.This growth has been accompanied by highly visible, media-savvy worker organizing drives among journalists, fast-food workers and graduate student instructors, and comes on the heels of high-profile strikes by groups ranging from Oakland teachers to Hollywood writers. Since 2021, this union resurgence has been aided in no small part by the Biden NLRB, which has been unusually hospitable to labor’s claims, even for a Democratic administration.More and more workers are saying that they want to be a part of a union – and more and more of them are finding ways around the many and onerous obstacles designed to prevent them from forming one. Given the growing power of American unions, maybe the anti-worker court is right to be scared.
      Moira Donegan is a Guardian US columnist More

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      Trump lawyers meet with DoJ to stave off indictment in Mar-a-Lago case

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      Lawyers for Donald Trump met with top US justice department officials on Thursday to complain about perceived misconduct in the criminal investigation into the former US president’s handling of national security materials and obstruction, according to two people familiar with the matter.The meeting involved Trump lawyers Jim Trusty, John Rowley and Lindsay Halligan speaking with the special counsel Jack Smith, who is leading the investigation, and a senior career official to the deputy attorney general, one person said. CBS News first reported the meeting.Trump’s lawyers made a general case as to why Trump should not be charged in the Mar-a-Lago documents case and suggested that some prosecutors working under special counsel Jack Smith engaged in what they considered prosecutorial misconduct, the people said.The exact allegations are not clear but Trump’s lawyers for weeks have complained privately that Jay Bratt, the chief of the counterintelligence and espionage section at the justice department, once sought to induce a witness into confirming something they declined to, one of the people said.Complaints of that nature result in an internal note to the special counsel and are unlikely to delay the criminal investigation.The meeting comes weeks after Trump’s lawyers asked the justice department for a meeting with the attorney general, Merrick Garland, to raise grievances about what they considered as unfair treatment of Trump over his handling of classified documents compared to other former presidents.“No president of the United States has ever, in the history of our country, been baselessly investigated in such an outrageous and unlawful fashion,” said the letter written by Trusty and Rowley.While it is not unusual for lawyers to seek a meeting with prosecutors near the end of an investigation, it typically is not with the attorney general. That is especially the case in special counsel investigations, where charging decisions can only be overruled if department rules were not followed.The development comes as prosecutors have recently asked witnesses before the grand jury hearing evidence in the case in Washington whether Trump showed off national security materials, including a document concerning military action against Iran, people close to the case said.Prosecutors have seemingly been trying to identify whether that Iran document was the same document Trump referenced on an audio recording in which he said he could not discuss it because he did not declassify it while in office – though he should have, the Guardian previously reported.The investigation has also examined whether the failure by Trump to fully comply with a subpoena last year demanding the return of any classified documents was a deliberate act of obstruction, the people said.Last June, the since-recused Trump lawyer Evan Corcoran found 38 classified documents in the storage room at Mar-a-Lago and told the justice department that no further materials remained at the property – which came into question when the FBI seized 101 additional classified documents months later.The Guardian has reported that Corcoran later told associates he felt misled in the subpoena response because he had asked whether he should search elsewhere at Mar-a-Lago, like Trump’s office, but was waved off. Corcoran’s notes also showed he told Trump he had to return all classified documents in his possession. More

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      Florida taxpayers pick up bill for Ron DeSantis’s culture war lawsuits

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      Since Florida’s governor, Ron DeSantis, took office in 2019 and embarked on his culture wars, lawsuits from various communities whose rights have been violated have been stacking up against the far-right Republican.As DeSantis fights the lawsuits with what critics have described as a blank check from the state’s supermajority Republican legislature, the mounting legal costs have come heavily at the expense of Florida’s taxpayers.In recent years, DeSantis’s ultra-conservative legislative agenda has drawn ire from a slew of marginalized communities as well as major corporations including Disney. The so-called “don’t say gay” bill, abortion bans and prohibition of African American studies are just a few of DeSantis’s many extremist policies that have been met with costly lawsuits in a state where residents are already struggling with costs of living.“The list of legal challenges precipitating from DeSantis’s unconstitutional laws is endless,” the Democratic state senator Lori Berman said.“We’ve seen Floridians rightly sue many if not all of the governor’s legislative priorities, including laws that restrict drag shows for kids, prohibit Chinese citizens from owning homes and land in Florida, suppress young and Black and brown voters, ban gender-affirming care and threaten supportive parents with state custody of their children, and of course, all the retaliatory legislation waged against Disney for coming out in support of the LGBTQ+ community,” she said.As a result of the mounting lawsuits against DeSantis, the governor’s legal costs, which the Miami Herald reported last December to cost at least $16.7m, have been soaring.In DeSantis’s legal fight against Disney following the corporation’s condemnation of his anti-LGBTQ+ laws, it is going to cost the governor and his handpicked board nearly $1,300 per hour in legal fees as they look into how the corporation discovered a loophole in DeSantis’s plan to acquire governing rights over Disney World, Insider reports.“Disney is a perfect example. It doesn’t hurt any Floridians. There is nothing. It’s creating a legal issue out of nowhere and now Disney sued so they have to respond and that is going to cost taxpayers’ money. The whole Disney case is just because of DeSantis’s ego and his hurt feelings,” the Democratic state senator Tina Polsky said.“Taxpayers are paying to foot the bills to pass unconstitutional bills and to keep up with his petty vengeance,” she said, adding: “I don’t think they’re aware at all … They’re too brainwashed at this point that they wouldn’t even care.”Meanwhile, in another case covered by the Orlando Sentinel, DeSantis’s administration has turned to the elite conservative Washington DC-based law firm Cooper & Kirk to defend the governor against his slew of “anti-woke” laws. The firm’s lawyers charge $725 hourly, according to contracts reviewed by Orlando Sentinel. As of June 2022, the state authorized nearly $2.8m for legal services from just Cooper & Kirk alone, the outlet reports.With mounting taxpayer-funded legal costs against DeSantis’s legislative agenda, critics ranging from civil rights organizations to the state’s Democratic lawmakers have lambasted DeSantis’s policies as unconstitutional and mere political stunts designed to propel him to the frontlines of the GOP primary.“DeSantis went to Harvard for his [law degree]. This is someone who should understand the constraints placed on him and the state by the United States constitution and the Florida constitution. He knows those constraints, but he doesn’t care. His goal is to intentionally pass unconstitutional laws and set up legal challenges in order for the conservative supreme court to overturn long-held protections,” Berman said.Bob Jarvis, a law professor at Nova Southeastern University, echoed similar sentiments, comparing DeSantis to his main competition and current GOP frontrunner Donald Trump, both of whom he said are cut “from the same cloth”.“Ron DeSantis is a Harvard law school graduate. He is a lawyer. Whereas Donald Trump at least could make the argument, ‘I’m just the layperson, I don’t know’ if … something is deemed illegal or unconstitutional … DeSantis does not have that defense,” Jarvis said.Nevertheless, DeSantis appears unfazed.“DeSantis knows very well that … what he is doing is unconstitutional and illegal … Lawyers by training are very cautious so this is quite remarkable to have a lawyer-politician who not only knows better, but does not care,” said Jarvis.To DeSantis, it does not matter whether he wins or loses the legal battles as he knows he “ultimately controls the Florida supreme court”, according to Jarvis.“He is playing a ‘heads, I win, tails, you lose’ game. If he gets one of these crazy policies passed and they’re challenged and the court upholds him … he can say to the press and to the public, ‘I was right and the proof is in the pudding because the courts agreed with me,’” he explained.“But even better for DeSantis when they rule against him … DeSantis is able to stand up and say, ‘These crazy judges want our children to watch drag shows, they want our children to be taught to be gay, they want Disney to be this terrible company. That’s why you need a strong governor and why you will benefit from having me as president because I will make sure to get rid of these judges and replace them with judges that have traditional American morals,’” Jarvis added.As DeSantis continues to fight his costly legal battles, the state’s supermajority Republican legislature appears to encourage him wholly.“We’re in a litigious society,” the state senate president, Kathleen Passidomo, told the Tallahassee Democrat while the senate budget chair, Doug Broxson, told the outlet: “We want the governor to be in a comfortable position to speak his mind.”With Republicans rushing to DeSantis’s defense, perhaps the most glaring example of the legislature’s endorsement of his legal wars is the $16m incorporated into the state’s $117bn budget to be used exclusively for his litigation expenses.Speaking to the Guardian, the state’s Democratic house leader, Fentrice Driskell, called the budget a “carte blanche” from Republicans and the result of zero accountability.“The legislature is supposed to be a check on executive power. By giving him a carte blanche to go and fight these wars in court, it’s basically just saying that there are no checks and balances when it comes to the state government in Florida,” said Driskell.“It’s a waste … They are just allowing this single person to impose his will on the state of Florida and they’re willing to waste taxpayer dollars to do it,” she said, adding: “Most Floridians can’t afford their rent and property insurance rates are through the roof. We could have redirected that money towards affordable housing.”Driskell went on to describe Medicaid iBudget Florida, a waiver that provides disabled Floridians with access to certain services and which currently has a waitlist of more than 22,000 residents.“It’s very difficult for them to get off that waitlist because the Republicans underfund Medicaid. We could put that money towards funding the waitlist and getting people off of it. I think there’s only $2m that was put in the budget for that this year. If we added the $16m that was added for these culture wars, my goodness, that’s $18m. Presumably we could help get nine times more people off of the waitlist,” said Driskell.As DeSantis remains embroiled in his legal woes at the expense of Florida taxpayers, there is perhaps a single group of people that have benefited the most out of all the legal drama, Jarvis told the Guardian.“The lawyers who got that $16.7m, that’s money from heaven. That’s money that fell into their laps … Anytime there’s a loser, and the loser here is the Florida taxpayer, there is a winner. The winners here are the lawyers who are collecting those enormous fees. The more that plaintiffs file lawsuits and the more they fight these crazy policies, you know that’s just money in the bank for these lawyers,” Jarvis said.“DeSantis has been God’s gift to lawyers,” he added. More

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      The Supermajority review: How the supreme court trumped America

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      Michael Waldman ran the speechwriting department in Bill Clinton’s White House. His new book about the conservative supermajority which dominates the supreme court is written with the verve of great campaign oratory.Waldman is also a learned lawyer, president of the Brennan Center for Justice at New York University School of Law, and a talented popular historian. His new book focuses on three horrendous decisions the court rendered at the end of its term one year ago, but it includes a brisk history the court of the last 200 years, from the disastrous lows of Dred Scott v Sandford (1857) and Plessy v Ferguson (1896) to the highs of Brown v Board of Education (1954) and Obergefell v Hodges (2015).But the longest analysis is devoted to those three days in June 2022 when the court “crammed decades of social change into three days”.Waldman writes: “It overturned Roe v Wade [on abortion] … putting at risk all other privacy rights. It radically loosened curbs on guns, amid an epidemic of mass shootings. And it hobbled the ability of government agencies to protect public health and safety and stop climate change.”These decisions were the work “of a little group of willful men and women, ripping up long-settled aspects of American life for no reason beyond the fact that they can”.Waldman describes how earlier extreme decisions of the court provoked gigantic national backlashes.The civil war started just four years after the court held in Dred Scott that African Americans could not sue in federal court because they could not be citizens of the United States.In May 1935, the “Black Monday decisions” obliterated key parts of Franklin Roosevelt’s New Deal, including striking down the National Recovery Administration. Those rulings led to Roosevelt’s unsuccessful plan to expand the size of the court, which in turn led the court to reverse its position on the New Deal, suddenly upholding Social Security and the National Labor Relations Act. Referring to the number of justices on the court, one newspaper humorist called it “the switch in time that saved nine”.Waldman describes the current make-up of the court as the ultimate outcome of the longest backlash of all – the one to the court led by Earl Warren, who crafted the unanimous opinion in Brown, outlawing segregation in public schools.Equally important were decisions requiring legislative districts to have equal populations. Before Reynolds v Sims in 1964, nearly 40% of the population of California lived in Los Angeles but the state constitution awarded that county just one of 40 state senators. Proclaiming the revolutionary doctrine of “one person, one vote”, the court said: “Legislators represent people, not trees or acres.” By 1968, 93 of 99 state legislatures had redrawn their districts to comply.But these vital building blocks of modern American democracy coincided with the dramatic social changes of the 1960s, including the fight for racial equality and the explosion of sexual freedom.“The backlash to the 1960s lasted much longer than the 1960s did,” Waldman observes. “Most of us have spent most of our lives living in it.”Richard Nixon’s 1968 campaign was the first to capitalize on this backlash. A young campaign aide, Kevin Phillips, explained the plan to the journalist Garry Wills: “The whole secret of politics” was “knowing who hates who”, a theory that reached its apotheosis 50 years later with the ascendance of Donald Trump.The problem for America was that most of the energy on the left dissipated after the election of Nixon. At the same time, the right began a decades-long battle to turn back the clock. For 50 years, the right has had overwhelming organizational energy: it built a huge infrastructure of think tanks and political action committees that culminated with the election of Trump and his appointment of the three justices who cemented the rightwing supermajority.Recent reports have highlighted the enormous amounts of money that have directly benefitted justices John Roberts and Clarence Thomas (never mind Thomas’s own gifts from Harlan Crow) through payments to their wives. Waldman reminds us how long this has been going on. Way back in 2012, Common Cause charged that Thomas failed to disclose nearly $700,000 from the Heritage Foundation to his wife, forcing him amend 20 years of filings.Waldman is particularly good at explaining how earlier rulings have accelerated the infusion of gigantic sums that have corrupted American politics. Most important of course was Citizens United v Federal Election Commission, in 2010, when five justices including Roberts “undid a century of campaign finance law”.Citizens United made it possible for corporations and unions to spend unlimited sums in federal elections as long as they plausibly pretended they were independent of the candidates they backed. As Waldman writes, quickly “that proved illusory, as presidential contenders … raised hundreds of millions of dollars for their campaigns, all of it supposedly independent”.This was the beginning of the Roberts majority’s use of the first amendment guarantee of free speech “to undermine democracy, a constitutional contradiction”. Two years after Citizens United, the court eliminated “a long-standing cap on the amount” individuals could give to federal candidates.These rulings “remade American politics”, Waldman writes. “In the new Gilded Age of fantastically concentrated wealth, billionaires again dominated the electoral system.”The shift was dramatic “and largely unremarked”. In 2010, billionaires spent about $31m in federal races. A decade later they spent $2.2bn. Last year, Peter Thiel provided nearly $30m in “independent funds” to support JD Vance in Ohio and Blake Masters in Arizona.Waldman concludes that the court has become a serious threat to American democracy. He suggests our only hope is that Democratic successes in last year’s midterms – many based on fury over the fall of Roe v Wade – mark the beginning of a backlash against the rightwing revolution the court now shamelessly promotes.
      The Supermajority: How the Supreme Court Divided America is published in the US by Simon & Schuster More

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      Oath Keeper sentenced to eight and a half years for role in Capitol attack

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      A member of the far-right Oath Keepers on Friday was sentenced to eight and a half years in prison for her role in the deadly 6 January 2021 assault on the US Capitol by extremist supporters of Donald Trump who tried to overturn Joe Biden’s presidential election victory over the Republican.Jessica Watkins was convicted in November by a federal jury in Washington of obstruction of an official proceeding for her role in the storming of the Capitol, which saw rioters battle police, smash windows and send lawmakers running for their lives.Watkins was also convicted of conspiracy and obstruction of officers during the riots.The US district judge Amit Mehta on Friday said it was “particularly hard” to issue a sentence for Watkins after she testified during trial about the struggles she faced with her transgender identity and her cooperation with law enforcement officials during their investigation of her conduct on January 6.But he said that “doesn’t wipe out” what she did during the attack. “Your role that day was more aggressive, more assaultive, more purposeful than perhaps others,” Mehta said.Kenneth Harrelson, another Oath Keeper convicted of obstruction of an official proceeding, was also found guilty of conspiring to prevent members of Congress from certifying Biden’s election win as well as tampering with documents and proceedings. He will be sentenced later on Friday.Watkins and Harrelson were acquitted of seditious conspiracy charges.Watkins told the judge: “My actions and my behavior that fateful day were wrong and, as I now understand, criminal,” she said.Friday’s court proceedings were taking place one day after Mehta sentenced the Oath Keepers’ founder, Stewart Rhodes, to 18 years in prison for crimes including seditious conspiracy, or using force to try to overthrow the federal government. That is the steepest penalty yet against those charged in the January 6 violence.Members of the Oath Keepers, founded by Rhodes in 2009, include current and retired US military personnel, law enforcement officers and first responders. More

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      Conservative judges hear challenge to abortion pill access in controversial lawsuit

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      Three US appeals court judges who have previously favored abortion restrictions prepared to hear oral arguments on Wednesday on the future of the major abortion drug mifepristone.The case – which has landed before judges Jennifer Walker Elrod, James Ho and Cory Wilson – essentially calls on them to rule on whether the federal government should suspend or scale back the federal Food and Drug Administration’s (FDA) approval of mifepristone in 2000, along with later actions that made the pill more widely accessible.Mifepristone has consistently been found to be safe and effective, and advocates argue that it is safer than the erectile dysfunction medication Viagra and low-level pain reliever Tylenol.But an emboldened anti-abortion movement set its sights on mifepristone after the US supreme court’s conservative majority last year eliminated federal abortion rights that had been established by the Roe v Wade decision in 1973.After a coalition of groups brought a lawsuit in November against the FDA’s approval of the drug, Texas-based federal judge Matthew Kacsmaryk in April issued a ruling suspending the FDA’s approval of mifepristone. Joe Biden’s administration appealed, sending it to the appellate court in New Orleans where Elrod, Ho and Wilson sit – and to the supreme court, which indefinitely blocked the suspension as the case proceeds.The plaintiffs in the dispute are an alliance of physician groups who generally argue they have standing to bring the case because they have members in Texas and elsewhere in the US who have treated women and girls experiencing complications after taking mifepristone for abortions. The Alliance for Hippocratic Medicine, the American Association of Pro Life OB-GYNs, the American College of Pediatricians and the Christian Medical & Dental Associations contend that the complications – bleeding and pain – are dangerous, and have trotted out unproven arguments that women who have abortions are prone to suicide and depression.Studies have shown that 95% of women who had abortions reported five years later that it had been the right decision for them.Their effort to in essence ban mifepristone also hinges on a 150-year-old law known as the Comstock Act, which criminalizes the mailing or shipping of any “lewd, lascivious, indecent, filthy or vile article”, along with anything that is “advertised or described in a manner … for producing abortion”.Interpreted widely enough, opponents of the plaintiffs say, the previously dormant Comstock Act could prohibit the legal mailing of any abortion instrument, even to states which have chosen to keep abortion legal since last year’s supreme court ruling, bringing the US one step closer to a national abortion ban that – according to polling – most Americans would not support.Meanwhile, the FDA’s efforts to rebuff the physician group has involved defending mifepristone’s approval process against claims that it was inadequate, along with characterizing the plaintiffs as lacking standing despite their contentions to the contrary.Jennifer Dalven, the director of the American Civil Liberties Union’s Reproductive Freedom Project, on Monday described the fifth circuit panel hearing the case as “one of the worst panels of judges that could have been assembled for those who believe mifepristone should remain on the market”.“This case should’ve been laughed out of court from the start – it has no basis in science, it has no basis in law, it’s been roundly criticized by experts from across the ideological spectrum,” Dalven said during a virtual briefing with reporters. “But we’re living in strange times, and some judges have shown that they’re willing to blatantly ignore the rule of law to achieve their own ideological goals.”Donald Trump nominated Ho and Wilson to their posts during his presidency. (He also nominated Kacsmaryk, whose ruling is the subject of Wednesday’s hearing.)Trump’s fellow Republican president George W Bush nominated Elrod.All three in 2021 upheld a Texas law which outlawed an abortion method commonly used to terminate pregnancies in their second trimester.A 2018 opinion from Ho called abortion “a moral tragedy”. And in 2019, though he concurred with an opinion which found that an abortion ban in Mississippi had to be struck down under legal precedent then in effect, he asserted: “Nothing in the text or original understanding of the constitution establishes a right to an abortion.”For her part, Elrod not only wrote the 2021 opinion addressing Texas’s ban of the second-trimester pregnancy abortion method, but also an opinion that same year which declined to order Louisiana state officials to issue a delayed license for a Planned Parenthood abortion clinic in New Orleans. The opinion declared no one had the federal right to operate an abortion clinic.Either side could appeal any ruling from Elrod, Ho and Wilson to the supreme court, which could take a year or more to issue the final word on the matter.The Associated Press contributed reporting More

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      US supreme court pursuing rightwing agenda via ‘shadow docket’, book says

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      Conservative justices on the US supreme court consciously broke with decades-old congressional rules and norms to shift laws governing religious freedom sharply to the right through a series of shadowy unsigned and unexplained emergency orders, a new book reveals.Five of the six conservatives who now command the majority on the US’s most powerful court have rammed through some of their most contentious and extreme partisan decisions using the so-called “shadow docket” – unsigned orders issued frequently late at night, in literal and metaphorical darkness. The orders do not reveal who voted for them or why, often providing one-line explanations of the legal thinking behind them.The switch from openly argued cases, aired in public, to the unaccountability of the shadow docket was made purposefully during the pandemic in cases dealing with religious liberty, concludes Stephen Vladeck, an authority on the federal courts at the University of Texas law school. He warns that the trend is merging with the current ethics scandals surrounding the conservative justice Clarence Thomas to damage the legitimacy of the court and threaten a full-blown constitutional crisis.Vladeck exposes the largely unnoticed shift towards furtive justice in his new book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. He shows how rightwing justices have abused the court’s emergency powers to run roughshod over the longstanding norm that shadow docket orders should be used sparingly and with extreme caution.Rightwing justices are now deploying such orders dozens of times each term. Over three terms alone, from 2019 to 2022, the court granted emergency relief in more than 60 cases: effectively overturning the considered decisions of lower courts through rushed, unexplained rulings.Among those orders were decisions that have had profound and nationwide impact over some of the most hotly disputed areas of public life, from abortion to immigration, voting rights, the death penalty and religious practices. Many appear to align more closely with Republican political priorities than with legal principles.One such order alone, the decision on the shadow docket to block the Biden administration’s January 2022 requirement that large employers mandate Covid vaccinations for their workforce, affected more than 83 million Americans – about a quarter of the US population.“The rise of the shadow docket reflects a power grab by a court that has, for better or worse, been insulated from any kind of legislative response,” Vladeck writes.The author chronicles how the most disturbing use of the shadow docket came with the rewriting of constitutional protections for religious liberty. The dramatic shift followed the death of the liberal justice Ruth Bader Ginsburg and her replacement in 2020 with a devout Catholic rightwinger, Amy Coney Barrett.The switch gave the conservative majority sufficient votes to overcome all resistance to ramping up use of the shadow docket, including from the chief justice, John Roberts, who though conservative has expressed mounting unease about the practice.The change in tactics could be seen almost immediately. Within weeks of taking her seat, Barrett joined four other rightwingers – Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – to drive through a major change in the constitutional understanding of religious liberty, blocking New York state Covid restrictions on the numbers of worshippers allowed to gather in churches.The order was unsigned and gave virtually no explanation for a decision that profoundly changed the law of the land, rolling back government regulations where they touched upon religious practices. It was issued at four minutes before midnight on the day before Thanksgiving – a moment that would guarantee minimal media attention.The ruling was all the more extraordinary as by then New York had scaled back its Covid restrictions and churches no longer had to limit congregation sizes. So the court’s change in the law was moot.The same five rightwing justices went on to impose their will on religious liberty laws with similar late-night one-sentence rulings knocking back state Covid restrictions in California, New Jersey and Colorado. In total, the majority issued emergency injunctions against state Covid rules on religious grounds six times in four months.The sudden spate of shadow docket orders that followed Barrett’s arrival on the court was not accidental, Vladeck says. The justices could have taken up several pending cases in full court that would have addressed the issue of religious freedoms in open hearings on the merits, yet they chose to go the obscure shadow docket route.“Here we have the court not just using emergency applications to change substantive legal principles, but doing so even as they are considering requests to make the same changes through merits decisions,” Vladeck told the Guardian.Vladeck links the rise of the shadow docket to the increasing isolation of the supreme court and its disconnection from public opinion. The growing use of the shadow docket also mirrors the polarisation and toxification of American politics.Vladeck warns that the growing trend towards jurisprudence produced in darkness is endangering the legitimacy of the nation’s most powerful court. Public confidence in the court is already at a historic low, compounded by the recent revelations that Thomas accepted lavish gifts from the Republican billionaire Harlan Crow.“The shadow docket is a symptom of a larger disease,” Vladeck said. “The disease is how unchecked and unaccountable the court is today, compared to any of its predecessors.” More

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      US ethics watchdog calls on Clarence Thomas to resign over undisclosed gifts

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      The conservative supreme court justice Clarence Thomas must resign, an ethics watchdog said on Tuesday, citing revelations about Thomas’s failure to declare lavish gifts and financial support from a Republican mega-donor, Harlan Crow.In an open letter to the scandal-hit Thomas, Noah Bookbinder of Citizens for Responsibility and Ethics in Washington, or Crew, cited a “grave crisis of institutional legitimacy currently facing the supreme court”.“For the sake of the court and for the sake of our democracy which depends on a judiciary that the public accepts as legitimate and free from corruption, we urge you to resign.”He added: “Your conduct has likely violated civil and criminal laws and has created the impression that access to and influence over supreme court justices is for sale.”Thomas has said he did not declare gifts from Crow including luxury travel and resort stays because he was advised not to do so, but will do so in future.He has not commented on reports that Crow bought from him property in which his mother still lives rent-free; that Crow paid for the private schooling for Thomas’s great-nephew, who the justice said he was raising like a son; and that the conservative activist Leonard Leo secretively arranged payment of tens of thousand dollars to Ginni Thomas, the justice’s rightwing activist wife.Leo and Crow deny wrongdoing.In the case of the school fees, Thomas did declare a gift from another donor for the same purpose. Critics say this shows he knew he should have declared gifts from Crow.Supreme court justices are notionally subject to ethics rules for federal justices but in practice govern themselves.Democrats in Congress have called for Thomas to be impeached and removed. That is a nonstarter, as Republicans hold the House, where impeachment would begin, and will protect the 6-3 conservative majority which has handed down major rulings including the removal of abortion rights. Democrats have also called for ethics reform.Senate Democrats sought to call the chief justice, John Roberts, to testify about ethics rules. Roberts refused. Democrats cannot use a subpoena to compel testimony – from Roberts, Thomas or any other justice – because without the ill and absent Dianne Feinstein of California they do not have the required majority.Last week the judiciary committee chair, Dick Durbin, urged Roberts to confront the Thomas issue, saying the chief justice “has the power in his hands to change this”.Durbin also said the “tangled web” around Thomas “just gets worse and worse by the day”.On Tuesday, Crow rebuffed a request from the Senate finance committee, citing tax concerns, for a list of gifts given to Thomas.An attorney for Crow, Michael Bopp, called the request “a component of a broader campaign against Justice Thomas and, now, Mr Crow, rather than an investigation that furthers a valid legislative purpose”.Democrats on the Senate judiciary committee sent Crow a similar letter.In his letter to Thomas, Bookbinder said: “It has become clear that over the last several decades you have engaged in a longstanding pattern of conduct to accept and conceal gifts and other benefits received from … a billionaire political activist, and have disregarded your ethical duty to recuse yourself from cases in which you have a personal or financial conflict of interest.”Crow insists he is simply good friends with Clarence and Ginni Thomas, with whom he refrains from discussing politics or business before the court.But outlets including the Guardian have shown that groups linked to Crow – a collector of historical memorabilia including paintings by Hitler – have had business before the court during the period of his friendship with Thomas.Bookbinder said reports about Thomas were “contributing to a catastrophic decline in public confidence that threatens to undermine the entire federal judiciary”.Public polling shows confidence in the court at historic lows.In 1969, Justice Abe Fortas resigned from the supreme court, in part for accepting payment for outside activity. Fortas was paid $15,000 to teach summer school and took $20,000 from a foundation run by a convicted fraudster.Bookbinder told Thomas: “We know of no other modern justice who has engaged in such extreme misconduct.“Indeed, your receipt of consistent, lavish gifts and favors from a billionaire with an interest in the direction of the court is so far outside the experience of most of the American people, and so far beyond what most would consider acceptable, that it cannot help but further diminish the court’s credibility.”He also charged Thomas with failing to recuse himself from cases involving his wife’s “personal or financial interests”, notably after the 2020 election, in a case regarding whether to release documents related to Donald Trump’s attempt to stay in power.Thomas was the sole justice to say the documents should not be released. When they were, they showed Ginni Thomas’s extensive involvement in Trump’s election subversion.Bookbinder said: “It is increasingly difficult for people to trust that you are making decisions only based on the law and a commitment to justice.“… The judiciary is built entirely upon a foundation of public trust. If that falls away, the institution will fail. While we appreciate your many years of public service, your conduct has left you with only one way to continue faithfully serving our democracy.“For the sake of our judiciary and the sake of people’s faith in its legitimacy, you must resign.” More