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      The supreme court is deciding more and more cases in a secretive ‘shadow docket’ | Moira Donegan

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      OpinionUS politicsThe US supreme court is deciding more and more cases in a secretive ‘shadow docket’Moira DoneganThese emergency rulings – short, unsigned and issued without hearing oral arguments – undermine the public’s faith in the integrity of the court Tue 31 Aug 2021 06.14 EDTLast modified on Tue 31 Aug 2021 16.45 EDTLast week, it was Remain in Mexico. On Tuesday, the supreme court issued an order requiring the Biden administration to reinstate the Trump-era policy that required asylum seekers from Central America to stay across the border in Mexico while their claims are adjudicated. It was an uncommonly aggressive intervention into foreign policy, an area where previous courts have preferred a light touch, and it posed massive logistical, diplomatic and humanitarian crises at the border that will need to be rapidly resolved if the Biden administration is to comply with the order.Two days later, it was the eviction moratorium. On Thursday, the court blocked an extension of the federal emergency ban on evictions, gutting a 1944 law that gave the CDC the authority to implement such measures to curb disease, and endangering the 8m American households that are behind on rent – who now, without federal eviction protection, may face homelessness.Both of these orders last week were issued in the dead of night. Their opinions were truncated, light on the details of their legal reasoning, and unsigned. Vote counts were not issued showing how each justice decided. And despite the enormous legal and human impact that the decisions inflicted, they were the product of rushed, abbreviated proceedings. The court did not receive full briefs on these matters, heard no oral arguments and overrode the normal sequence of appellate proceedings to issue their orders.Welcome to the “shadow docket”, the so-called emergency proceedings that now constitute the majority of the supreme court’s business. Minimally argued, rarely justified and decided without transparency, shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters. To have an issue addressed on the shadow docket, a litigant has to apply for “emergency relief” – usually to stop a decision against them from a lower court from going into effect while appeals proceed. Traditionally, applicants would need to demonstrate that they would suffer “irreparable harm” if their petition wasn’t granted immediately. So one historical use of the shadow docket has been in federal death penalty cases, where the court has used the emergency proceeding to affirm or deny requests for stays of execution.But in recent years the court has largely dispensed with any meaningful application of the irreparable harm standard, and instead has entertained emergency relief petitions from more and more litigants, issuing shadow docket rulings on increasingly significant and controversial legal questions without the rigor or transparency that such issues demand.The term “shadow docket” was coined in 2015 by a conservative law professor to refer to the thousands of supreme court actions each term that defy the “normal procedural regularity” of the federal appellate process. A newer, expanded version of the shadow docket began to emerge in 2017, when the Trump administration came to power. Previously, shadow docket emergency requests had been rarely used, to advance the interests of the governing administration. From 2001 through 2016, the Department of Justice applied for these emergency relief interventions from the court only eight times. During the four years of Trump’s presidency, however, the justice department applied 41 times. The use of shadow docket requests by Trump’s justice department especially accelerated after 2018, when Justice Anthony Kennedy retired and was replaced by Brett Kavanaugh, initiating the court’s rightward lurch.The gambit worked. Of those 41 requests, the supreme court granted 28 of them in whole or in part, denying the Trump administration outright only four times – much more generous than the court has been to other litigants. Bypassing lower courts, the Trump administration was able to solicit the supreme court for a green light for border wall funding and construction, for a ban of transgender troops in the military, for a ban of immigrants from Muslim majority countries, and for many, many executions during the administration’s 11th-hour killing spree in the latter half of 2020.Ultimately, many of the policies that the court used the shadow docket to keep in place were never declared legal: they were simply rescinded when Trump left office. It was only because of the supreme court’s unusual intervention via the shadow docket that they were able to be enacted at all. If this seems like the court merely deferring to the prerogatives of the executive, rest assured that it isn’t: the court’s shadow docket has not been similarly generous towards Biden administration claims.In this way, the shadow docket’s expanded use raises troubling questions – both for transparency, and for the separation of powers. What does it mean for popular sovereignty when the unelected supreme court can overturn the actions of elected officials seemingly at whim, without reading briefs, without hearing arguments and without having to assign judges’ names to their opinions or make any effort to explain their reasoning? The supreme court’s cryptic, late-night shadow docket decrees risk overextending the court’s already tremendous power, and its lack of transparency shrinks the already slim opportunities for oversight. There is considerable potential for abuse, and there are also simple logistical problems: without a real accounting of the justices’ reasoning, lower courts are left to guess why a certain decision was handed down, rendering them less equipped to interpret precedent.And all of this is before we get to the shadow docket’s real problem: it further undermines the already severely damaged public trust in the court. The justices and the legal elites who flatter them like to say that the supreme court is composed of neutral, apolitical arbiters of the law. But this mythology conflicts with a growing public perception of the federal judiciary as protectors of Republican priorities. This impression is not helped by the reality that the court’s decisions on the shadow docket seem much less consistent in their legal reasoning than they do in their politics. In light of this, it is tempting to conclude that the court has transformed the once-anodyne tool of the shadow docket into a way to achieve the preferred outcomes of the conservative majority without having to justify its own actions to the public.Steve Vladeck, a University of Texas law professor and one of the shadow docket’s most prominent critics, summarized the danger in an article in the Harvard Law Review. The shadow docket, he writes, “risks the perception that the rule is not one for the federal government in general, but for the federal government at particular moments in time – perhaps depending on the identity (or political affiliation) of the sitting president, or perhaps, more granularly, depending on the political or ideological valence of the particular government policy at issue”.With respect to Professor Vladeck, maybe the shadow docket does not risk such a perception – maybe it reaffirms it.
      Moira Donegan is a Guardian US columnist
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      Why is the right suddenly interested in Native American adoption law? | Nick Estes

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      OpinionUS politicsWhy is the US right suddenly interested in Native American adoption law?Nick EstesA 1978 law tried to remedy adoption practices created to forcibly assimilate Native children. Now conservative lawyers are arguing that the law constitutes ‘reverse racism’ Mon 23 Aug 2021 06.23 EDTLast modified on Mon 23 Aug 2021 12.05 EDTGeorge Armstrong Custer of the Seventh Cavalry was infamous during the 19th-century Indian wars for riding into the enemy camp, holding Native women, children and elders hostage at gunpoint, and forcing the surrender of the tribe. He systematically attacked and captured civilians to crush Indigenous resistance, which is partly how he defeated the Cheyenne at the Battle of Washita River in 1868. Cheyenne, Lakota and Arapaho warriors later killed Custer as he fled after trying the same hostage-taking ploy at the Battle of Greasy Grass in 1876.Attacking non-combatants, especially children, to enable the conquest of land by destroying the family, and therefore Indigenous nations, wasn’t unique to Custer or the US military.There’s a reason why “forcibly transferring children” from one group to another is an international legal definition of genocide. Taking children has been one strategy for terrorizing Native families for centuries, from the mass removal of Native children from their communities into boarding schools to their widespread adoption and fostering out to mostly white families. It’s what led to the passage of the Indian Child Welfare Act (ICWA) of 1978, touchstone legislation that aimed to reverse more than a century of state-sponsored family separation.Yet the spirit of Custer still haunts the fate of Native children even today. The fight has shifted from battlefield to courtroom.In the new season of the This Land podcast premiering this Monday, Cherokee journalist Rebecca Nagle shows how corporate lawyers and rightwing thinktanks like the Cato Institute have teamed up with non-Native families to not only dismantle the ICWA but the entire legal structure protecting Native rights. And so far, they’ve made small but important victories.Last April, an appeals court upheld parts of a federal district court decision, in a case called Brackeen v Haaland, that found parts of ICWA “unconstitutional”. The non-Indian plaintiffs contend that federal protections to keep Native children with Native families constitute illegal racial discrimination, and that ICWA’s federal standards “commandeer” state courts and agencies for a federal agenda. Put plainly, the mostly white families wanting to foster and adopt Native children are claiming reverse racism and arguing that federal overreach is trampling states’ rights – two codewords frequently associated with dismantling anti-racist policies.According to this upside-down logic, ICWA – monumental legislation consciously designed to undo genocidal, racist policy – is racist because it prevents mostly non-Indians from adopting Native children. The thinking is as old as the “civilizing” mission of colonialism – saving brown children from brown parents.Native child welfare in practice, however, is quite different, and, as Nagle shows in story after heartbreaking story, it very often works against the interests of Native children and families and in favor of families like the plaintiffs in Brackeen.Court records show that two of the three non-Indian families in Brackeen have successfully fostered or adopted Native children despite ICWA protections and with tribes agreeing to the adoption. But they still claim discrimination.A mountain of evidence suggests that Native families, particularly poor ones, are the real victims.In two studies from 1969 to 1974, the Association on American Indian Affairs found that 25-35% of all Native children had been separated from the families and placed in foster homes or adoptive homes or institutions. Ninety percent were placed in non-Indian homes.ICWA aimed to reverse this trend. Today, Native children are four times more likely to be removed from their families than white children are from theirs. And according to a 2020 study, in many states Native family separation has surpassed rates prior to ICWA. This is mostly due to states ignoring or flouting ICWA requirements.A common cause for removal is “neglect”, a form of abuse and a highly skewed claim especially when the Native families most targeted are poor. Failure to pay rent, for example, can result in eviction and homelessness and the placement of a child in state foster care system because of unstable living conditions. Some state statutes may provide up to several thousands of dollars a child per month to foster parents, depending on the number of children in their care and a child’s special needs.Why doesn’t that money go towards keeping families together by providing homes instead of tearing them apart?And there’s the dark side of foster care.Much like the boarding school system which preceded it, foster care is rife with stories of sexual and physical abuse, neglect and forced assimilation into dominant, white culture. To say nothing of the lifelong trauma of being torn from one’s family and nation during the formative years of childhood.So why are corporate law firms like Gibson Dunn – which has represented Walmart, Amazon, Chevron and Shell and is a former employer of the far-right Arkansas senator Tom Cotton – showing up at custody battles to square off with poor Native families and tribes? Are they really interested in the welfare of Native children?It’s foolish to think Custer had the best interests of Native children in mind when he captured them at gunpoint to slaughter and imprison their parents or that the Indian boarding school system, which disappeared thousands of children and raped, tortured, and traumatized countless more, was about “education”.Powerful conservative forces want to bring Brackeen v Haaland to the supreme court not just to overturn the ICWA but to gut Native tribes’ federal protections and rights. Like their counterparts the anti-critical race crusaders, anti-ICWA advocates use the language of “equality” to target Native nations. The collective tyranny of the tribe, the thinking goes, violates the rights of the individual.It’s the libertarian spin on the genocidal logic of Richard Henry Pratt’s nineteenth century maxim to justify child removal: “Kill the Indian, save the man.” The “Indian” is the tribal consciousness; the collective rights of a nation and its sovereignty must be weakened or destroyed to gain access to its lands and resources.Without the tribe, there is no Indian. When there is no Indian, there’s no one to claim the land.White congressmen from western states used the same reasoning to terminate tribes in the 1950s, making the argument that the collective rights of tribes shouldn’t trump individual rights of US citizens. The results were catastrophic. The legal abolition of dozens of tribes led to the privatization of their lands for the benefit of white settlers and businesses.Indigenous people are trying to drag the people of this land into the twentieth-first century by advocating for the protection of healthy water and land, the very elements necessary for all life, a true universal aspiration for a future on a livable planet that benefits everyone. And Native journalists like Rebecca Nagle reveal how nefarious corporate interests are trying to undermine that project by attacking the most precious among us – our children.
      Nick Estes is a citizen of the Lower Brule Sioux Tribe. He is a journalist, historian, and host of The Red Nation Podcast. He is the author of Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance (Verso, 2019)
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      in Elections

      Cybersleuths find men who allegedly attacked officer during US Capitol riot

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      US Capitol attack Cybersleuths find men who allegedly attacked officer during US Capitol riotDavid Walls-Kaufman and Taylor F Taranto appeared to target Jeffrey Smith because his eyes and face were vulnerable, suit says Alexandra VillarrealSat 14 Aug 2021 14.23 EDTFirst published on Sat 14 Aug 2021 13.03 EDTA group of cybersleuths have tracked down two men who allegedly attacked police officer Jeffrey Smith at the US Capitol during the 6 January insurrection, leaving him with injuries that have been linked to his death days later.In a new complaint, attorney David P Weber – who represents Smith’s widow, Erin – wrote that David Walls-Kaufman and and Taylor F Taranto appeared to specifically target Smith because his eyes and face were vulnerable.Man charged in Capitol riot also engaged in rightwing street brawlRead moreThe lawsuit said Walls-Kaufman used a cane, crowbar or similar object to level a brain injury to Smith, who took his own life on 15 January. Jonathan Arden, DC’s former chief medical examiner, has attributed Smith’s death to post-concussion syndrome, which can lead to symptoms like depression and suicidal thoughts.About a dozen people with the open-source intelligence group Deep State Dogs pored over evidence from the capitol attack for more than a month until they found footage of Smith and his assailants.“We felt we had to do something to honor the memory and family of Officer Smith. It’s terrible that the bereaved were left in that situation,” Forrest Rogers from Deep State Dogs told HuffPost. “So we turned to the thing we do best: finding bad guys.”Walls-Kaufman, a chiropractor, has said in the past that about 40% of his clients work at or around the Capitol. In January, he was quoted in a story about the riot, which implied he was in attendance.Taranto – a US navy veteran from Washington state – handed a weapon to Kaufman, who then struck Smith in the head. The battery led to a concussion, according to the lawsuit.“But for the concussion of Officer Smith at the hands of these defendants, Officer Smith would be alive today,” Weber wrote.Smith’s widow, Erin, has been trying to convince the Police and Firefighters’ Retirement and Relief Board to consider her husband as having died in the line of duty. But the DC metropolitan police department has refused to release Smith’s body-camera video showing what actually happened, and Weber expressed frustration about how little federal law enforcement has done to avenge Smith months after the attack.“I thought the I in FBI stood for ‘investigation’,” Weber told HuffPost. “It’s pretty lame that a private lawyer for a dead police officer’s widow has to be the one conducting the investigation.“The fact that these volunteers have accomplished what the FBI has not is extraordinary.”TopicsUS Capitol attackWashington DCUS policingLaw (US)newsReuse this content More

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      in US Politics

      Battle for the Soul: can Joe Biden beat Trump’s Republicans in the war of words?

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      Joe BidenBattle for the Soul: can Joe Biden beat Trump’s Republicans in the war of words? The president appeals to the ‘civil religion’ of Washington and Kennedy. His opponents use weasel words and seek to limit democracy. The stakes could not be higherMichael CornfieldSun 8 Aug 2021 02.00 EDTLast modified on Sun 8 Aug 2021 02.01 EDTJoe Biden declared his third candidacy for president on 25 April 2019 in a three-and-a-half minute video. The format was new, but for Biden relied on an old-fashioned conception of masculinity.Want to make Jim Jordan sing about the Capitol attack? Ask Jefferson Davis | Sidney BlumenthalRead moreHe talked about the 12 August 2017 neo-Nazi rally in Charlottesville, Virginia, about which Donald Trump (in)famously said there were “very fine people on both sides”. The incident provided Biden with a good vs evil story frame, which he entered as a sort of superhero.“At that moment,” Biden intoned, as viewers saw white supremacists marching with torches, “I knew the threat to this nation was unlike any I had seen in my lifetime.”
      I wrote at the time that we’re in the battle for the soul of this nation. Well, that’s even more true today. We are in the battle for the soul of this nation.
      If we give Donald Trump eight years in the White House, he will forever and fundamentally alter the character of this nation. Who we are. And I cannot stand by and watch that happen.
      The core values of this nation, our standing in the world, our very democracy, everything that has made America, America, is at stake.
      Captain America, out of retirement and to the rescue. The Charlottesville setting, adjacent to Thomas Jefferson’s home, Monticello, supplied Biden with a pretext to quote the Declaration of Independence. And the video displayed, in colonial cursive font, passages many Americans could recite from memory.The “battle for the soul of America” narrative frame served Biden well. It helped differentiate Biden’s criticism of Trump, as both personal and constitutional. It converted his age into a campaign asset: a man with historic consciousness would be a good choice for Democrats, a party that usually opted for youth. And it ennobled his call for unity as the solution to Trump’s divisiveness. A Biden victory would win the battle for the soul through an appeal to transcendent patriotic values.Two men, longtime adviser Mike Donilon and the historian Jon Meacham, have worked on Biden’s speeches and the “soul” verbiage. But regardless of the authorial division of labor, it has been Biden’s sign-off, delivery, and persona which give the phrase its public meaning.During the campaign, Biden repeated his theme in speeches on national holidays and historic anniversaries, often in Pennsylvania: at an 18 May 2019 campaign kick-off rally at the National Constitution Center in Philadelphia; in a 2 June 2020 speech at Philadelphia City Hall (commenting on the eruption of protest for the George Floyd death and the president’s use of tear gas at Lafayette Square in Washington); and on 6 October 2020 at the Gettysburg battlefield:
      You and I are part of a covenant, a common story of divisions overcome and hope renewed. If we do our part, if we stand together, if we keep faith with the past and with each other, then the divisions of our time will give way to the dreams of a brighter, better future. This is our work. This is our pledge. This is our mission.
      Pennsylvania is both the state where Biden was born and a perennial swing state. As the city where America’s foundational documents were written and signed, Philadelphia stands out in the national imagination as the Jerusalem of what sociologist Robert Bellah termed the “civil religion”. In his 1966 analysis of inaugural addresses from Washington to Kennedy, Bellah noted that presidents up to the incumbent at that time, Lyndon Baines Johnson, enlarged and deepened their rhetoric by invoking God. It was neither the God of any particular denomination nor a perfunctory bow to the religiosity of the American people. Rather, such references to God legitimated political authority by “supplying moral consensus amidst continuous political change”. Invocations of the civil religion reassure and integrate the disparate members of a pluralistic capitalist society.Biden relied more on the word “soul” than “God” but the functionality was the same. “Soul” is also a word with extensive philosophical and religious lineage. It denotes the essence of a being (or nation, or people). It connotes reason, feeling, presence, expressivity, depth, the substance of a style. In running for president, Biden was embarked on a moral crusade. He was battling, as he put it in another frequently used phrase, for “hope over fear, unity over division, and truth over lies”.And “the idea of America” at the seat of the civil religion was not an empty notion. Jill Lepore’s 2018 one-volume history of the US identified “These Truths” as the nation’s core values: political equality, natural rights, popular sovereignty and the meta-truth that they are “self-evident”, Benjamin Franklin’s Enlightenment amendment to Jefferson’s “sacred and undeniable”.Like most campaign slogans, “battle for the soul of America” was an expedient coinage, tinged in this case with a touch of bravado. Yet it has become uncannily apt. Some Americans continue to resist “these truths” and others. And so Biden has justly continued to use the phrase as president.In his inaugural address two weeks after the assault on the Capitol and Congress he quoted Abraham Lincoln’s attestation that “my whole soul is in it” as he signed the Emancipation Proclamation, and reiterated his claim that national unity was essential “to restore the soul and to secure the future of America”. On Memorial Day, at Arlington National Cemetery:
      The soul of America is animated by the perennial battle between our worst instincts – which we’ve seen of late – and our better angels. Between “Me first” and “We the People”. Between greed and generosity, cruelty and kindness, captivity and freedom.
      These Truths review: Jill Lepore’s Lincolnian American historyRead moreOn 13 July, back at the National Constitution Center, Biden zeroed in on the opposition:
      It’s no longer just about who gets to vote or making it easier for eligible voters to vote. It’s about who gets to count the vote – who gets to count whether or not your vote counted at all. It’s about moving from independent election administrators who work for the people to polarized state legislatures and partisan actors who work for political parties.
      To me, this is simple: This is election subversion. It’s the most dangerous threat to voting and the integrity of free and fair elections in our history …
      We have to ask: Are you on the side of truth or lies; fact or fiction; justice or injustice; democracy or autocracy? That’s what it’s coming down to …
      The Republicans on the other side peddle disinformation and bank on partisan polarization. They seek to negate the truth of the 2020 election results and tilt the certification process against a reoccurrence in 2024. Under the banners of a “stolen” and “rigged” election and a vastly exaggerated claim of election “fraud”, they are conducting feckless audits and enacting voter suppression laws in battleground states, including Pennsylvania. They blocked the establishment of an independent commission to investigate the riot on the day they voted to decertify the election. Biden also cited Jim Crow in view of the racial dimensions of the soul battle. The opposition has launched a coded attack on a misappropriated academic term, “Critical Race Theory”.The soul battle is distinct from the programmatic initiatives and negotiations being conducted under another Biden slogan, “Build Back Better”. In that political domain differences can be monetized and split without recourse to dire dichotomies. However, the emotions summoned over voting cannot be easily compartmentalized and hived off from the dollar figures.Wake review: a must-read graphic history of women-led slave revoltsRead moreThe soul battle also bears on the effort to persuade Americans to get vaccinated, both in Biden’s exhortations to get the shot which appeal to patriotic duty and the opposition’s efforts to brand resistance to vaccination as a stand for freedom against the government. Analyzing that argumentation requires an essay unto itself, although I note in passing that Biden’s rhetorical approach has eschewed the designation of a “czar” to coordinate the administration’s public appeals and briefings, which would put distance between the soul battle and the urgent project of pandemic mitigation. As it is, government messaging on Covid runs through the president and state governors. And it is certainly valid to see the battle against the virus as a test of the force of reason in politics.Occasions for more soul speechmaking dot the national calendar. A rally in Washington DC on 28 August will commemorate Dr Martin Luther King’s “I Have a Dream” address, which the president will probably recognize but not attend. The 20th anniversary of the September 11 attacks will necessarily reference the pullout of troops from Afghanistan, but Biden could also validate the House inquiry into the Capitol riot as being in the spirit of the 9/11 Commission. Thanksgiving is the quintessential holiday of the American civil religion. More occasions will crop up after congressional voting on the For the People and John Lewis Voting Rights Acts.But before any of those holidays or events surface on the civil religion calendar there is next Thursday, 12 August, the fourth anniversary of the battle that marked Biden’s starting point. He might do well to travel to Charlottesville and speak at the downtown spot vacated by the 10 July removal of the Robert E Lee statue that sparked the Unite the Right rally. It would be a sign that the mostly nonviolent but deeply conflicted war over the idea of America – for that is what a series of battles amounts to – is being won.TopicsJoe BidenBiden administrationUS politicsDemocratsRepublicansUS voting rightsProtestfeaturesReuse this content More