Law (US)

Subterms

    More stories

    • 313 Shares169 Views

      in US Politics

      The courts have a new chance to block Texas’s abortion law. They must take it | Laurence Tribe, Erwin Chemerinsky, Jeffrey Abramson and Dennis Aftergut

      by

      OpinionUS supreme courtThe courts have a new chance to block Texas’s abortion law. They must take itLaurence H Tribe, Erwin Chemerinsky, Jeffrey Abramson and Dennis AftergutSB 8 not only stripped Texan women of their rights under Roe v Wade, it made a mockery of the US constitution and the supremacy of the federal courts Sun 17 Oct 2021 06.24 EDTLast modified on Sun 17 Oct 2021 06.25 EDTSadly, predictably and appallingly, on October 14, a three judge panel of the US court of appeals for the fifth circuit has allowed Texas’s “Bounty-Hunter” anti-abortion law to go back into effect while the court considers the case on the merits. Every day that the fifth circuit panel’s unlawful order keeps the statute in operation brings irreversible injury to women in Texas. US Attorney General Merrick Garland has properly decided to seek emergency relief from the US supreme court.The justice department is right to accuse the State of Texas of seeking to destroy not only abortion rights but also the foundation of our constitutional Republic. In a nation whose history is fraught with battles between states’ rights and national sovereignty, the case of United States v Texas raises issues basic to our national compact.Texas set the current controversy in motion by passing SB8, an anti-abortion law that legislators knew was unconstitutional. In doing so, they violated what Chief Justice Marshall explained two centuries ago was the bedrock of our young nation’s rule of law – that our constitution reigns supreme.“Senate bill 8 (SB8) flouts that principle,” Monday’s DoJ brief in the fifth circuit reads. The law does that “by blatantly violating constitutional rights and severely constraining judicial review of its unconstitutional restrictions.” That “sets this case apart.”Put bluntly, Texas has sought not only to virtually eliminate women’s rights under Roe v Wade, but also to reduce our Constitution’s supremacy to a relic. Those twin dangers are why the stakes are high in the suit by the United States to enjoin the Texas anti-abortion statute. And that’s why the October 14 Fifth Circuit order keeping the law in effect is so troubling.This case stands on a very different footing from the one that a conservative 5-4 supreme court rejected on September 1 on procedural grounds. With the United States now suing, there is plenty of precedent for the federal government to come into court challenging a state law before it is enforced, and a state cannot hide behind sovereign immunity as a defense. The cases that the fifth circuit cited on Friday as reasons for refusing to block SB8 were entirely inapplicable because they have no relevance to a suit brought by the United States to force a recalcitrant state to obey the constitution. Texas’s reason for not arguing SB8’s constitutionality is obvious. The supreme court has affirmed many times since Roe v Wade in 1973 that states cannot prohibit abortions before the fetus is viable and capable of surviving outside the womb. Viability occurs at about the 24th week of pregnancy.Nonetheless, Texas’s law makes all abortions illegal, without exceptions for rape or incest, once fetal cardiac activity can be detected – usually around six weeks after a woman’s last menstrual period.The fact that the law is enforced by vigilantes’ private civil suits rather than by government prosecutions only aggravates its unconstitutionality. It is a Texas law that opens Texas courts to these bounty-hunting lawsuits. Since 1948, it has been settled law that individuals may not use state courts to deprive others of constitutional rights.On Wednesday, 6 October, in a 113-page opinion, with some of the strongest language ever heard from a federal judge, US district court Judge Robert Pitman blocked Texas from enforcing this near-total ban on abortions. Judge Pitman’s opinion explained that Texas concocted a transparent “scheme” to “end run” the constitution. The court laid out the elaborate “machinations” Texas devised to avoid a court doing anything about a clearly unconstitutional law.Judge Pitman also documented cases of women – sometimes minors – suffering “grievous wrong”, as they are forced to carry unwanted pregnancies or travel, if they can afford it, to another state to access their constitutional rights: “The court can only speculate as to the hardships” these women have “had to endure”.Having temporarily reinstated SB 8, the Fifth Circuit noted that it will expedite review of the merits of Judge Pitman’s decision. That could affect the supreme court’s consideration of emergency relief to the United States. Whether now or later, this case will land on the court’s docket. Even justices who disagree with Roe v Wade should recognize the dire implications of letting any state deliberately design a blatantly unconstitutional statute in such a way that no court can block its enforcement until it’s too late to prevent the statute from doing irreparable harm by deterring people from exercising their rights.In the 1950s, states tried to disregard supreme court decisions interpreting the constitution when they engaged in a concerted effort to thwart desegregation orders. Then, too, the United States government interceded against the states. When the Arkansas governor Orval Faubus attempted to block desegregation, the supreme court, in Cooper v Aaron, unanimously and emphatically reaffirmed the supremacy of the constitution and federal law.The court declared: “No state legislator or executive or judicial officer can war against the constitution without violating his undertaking to support it.” All nine justices joined in declaring: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”That would be the result if Texas could destroy the constitutional rights of women before any court could enjoin its devious scheme. To ensure the constitution remains the supreme law of the land, and to protect all rights it guarantees, the fifth circuit and the supreme court must uphold Judge Pitman’s injunction.
      Laurence H Tribe is the Carl M Loeb University Professor emeritus and a professor of constitutional law emeritus at Harvard Law School. Erwin Chemerinsky is the dean of the School of Law at the University of California, Berkeley. Jeffrey Abramson is Professor of Law and Government at the University of Texas, Austin. Dennis Aftergut is a former federal prosecutor
      TopicsUS supreme courtOpinionUS politicsLaw (US)AbortioncommentReuse this content More

    • 150 Shares199 Views

      in US Politics

      Supreme court, Facebook, Fed: three horsemen of democracy’s apocalypse | Robert Reich

      by

      OpinionUS supreme courtSupreme court, Facebook, Fed: three horsemen of democracy’s apocalypseRobert ReichThese unaccountable bodies hold increasing sway over US government. Their abuses of power affect us all Sun 10 Oct 2021 01.00 EDTLast modified on Sun 10 Oct 2021 05.22 EDTThe week’s news has been dominated by the supreme court, whose term began on Monday; the Federal Reserve, and whether it will start responding to inflation by raising interest rates; and Facebook, which a whistleblower claimed intentionally seeks to enrage and divide Americans in order to generate engagement and ad revenue.‘Facebook can’t keep its head in the sand’: five experts debate the company’s futureRead moreThe common thread is the growing influence of these three power centers over our lives, even as they become less accountable to us. As such, they present a fundamental challenge to democracy.Start with the supreme court. What’s the underlying issue?Don’t for a moment believe the supreme court bases its decisions on neutral, objective criteria. I’ve argued before it and seen up close that justices have particular and differing ideas about what’s good for the country. So it matters who they are and how they got there.A majority of the nine justices – all appointed for life – were put there by George W Bush and Donald Trump, presidents who lost the popular vote. Three were installed by Trump, a president who instigated a coup. Yet they are about to revolutionize American life in ways most Americans don’t want.This new court seems ready to overrule Roe v Wade, the 1973 ruling that anchored reproductive rights in the 14th amendment; declare a 108-year-old New York law against carrying firearms unconstitutional; and strip federal bodies such as the Environmental Protection Agency of the power to regulate private business. And much more.Only 40% of the public approves of the court’s performance, a new low. If the justices rule in ways anticipated, that number will drop further. If so, expect renewed efforts to expand the court and limit the terms of its members.What about the Fed?Behind the recent stories about whether the Fed should act to tame inflation is the reality that its power to set short-term interest rates and regulate the financial sector is virtually unchecked. And here too there are no neutral, objective criteria. Some believe the Fed’s priority should be fighting inflation. Others believe it should be full employment. So like the supreme court, it matters who runs it.Elizabeth Warren tells Fed chair he is ‘dangerous’ and opposes renominationRead morePresidents appoint Fed chairs for four-year terms but tend to stick with them longer for fear of rattling Wall Street, which wants stability and fat profits. (Alan Greenspan, a Reagan appointee, lasted almost 20 years, surviving two Bushes and Bill Clinton, who didn’t dare remove him).The term of Jerome Powell, the current Fed chair, who was appointed by Trump, is up in February. Biden will probably renominate him to appease the Street, although it’s not a sure thing. Powell has kept interest rates near zero, which is appropriate for an economy still suffering the ravages of the pandemic.But Powell has also allowed the Street to resume several old risky practices, prompting the Massachusetts Democratic senator Elizabeth Warren to tell him at a recent hearing that “renominating you means gambling that, for the next five years, a Republican majority at the Federal Reserve, with a Republican chair who has regularly voted to deregulate Wall Street, won’t drive this economy over a financial cliff again.”Finally, what’s behind the controversy over Facebook?Facebook and three other hi-tech behemoths (Amazon, Google and Apple) are taking on roles that once belonged to governments, from cybersecurity to exploring outer space, yet they too are unaccountable.Their decisions about which demagogues are allowed to communicate with the public and what lies they are allowed to spew have profound consequences for whether democracy or authoritarianism prevails. In January, Mark Zuckerberg apparently deferred to Nick Clegg, former British deputy prime minister, now vice-president of Facebook, on whether to allow Trump back on the platform.Worst of all, they’re sowing hate. As Frances Haugen, a former data scientist at Facebook, revealed this week, Facebook’s algorithm is designed to choose content that will make users angry, because anger generates the most engagement – and user engagement turns into ad dollars. The same is likely true of the algorithms used by Google, Amazon and Apple. Such anger has been ricocheting through our society, generating resentment and division.US supreme court convenes for pivotal term – with its credibility on the lineRead moreYet these firms have so much power that the government has no idea how to control them. How many times do you think Facebook executives testified before Congress in the last four years? Answer: 30. How many laws has Congress enacted to constrain Facebook during that time? Answer: zero.Nor are they accountable to the market. They now make the market. They’re not even accountable to themselves. Facebook’s oversight board has become a bad joke.These three power centers – the supreme court, the Fed and the biggest tech firms – have huge and increasing effects on our lives, yet they are less and less answerable to us.Beware. Democracy depends on accountability. Accountability provides checks on power. If abuses of power go unchallenged, those who wield it will only consolidate their power further. It’s a vicious cycle that erodes faith in democracy itself.
      Robert Reich, a former US secretary of labor, is professor of public policy at the University of California at Berkeley and the author of Saving Capitalism: For the Many, Not the Few and The Common Good. His new book, The System: Who Rigged It, How We Fix It, is out now. He is a Guardian US columnist. His newsletter is at robertreich.substack.com
      TopicsUS supreme courtOpinionUS constitution and civil libertiesLaw (US)FacebookSocial networkingFederal ReserveUS economycommentReuse this content More

    • 188 Shares159 Views

      in US Politics

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

      by

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

    • 188 Shares129 Views

      in US Politics

      Amy Coney Barrett says the supreme court aren’t ‘partisan hacks’. Oh really? | David Sirota

      by

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