Law (US)
Subterms
More stories
- in US Politics
Legal scholars publish letter calling for Stephen Breyer to retire from supreme court
A group of 18 legal academics has issued an extraordinary joint letter urging the US supreme court justice Stephen Breyer to retire so that Joe Biden can name his successor.The intervention came after Mitch McConnell, the Republican minority leader in the Senate, warned that Biden would not get a supreme court nominee confirmed in 2024 if Republicans regain control of the chamber and a vacancy arises.With conservatives holding a 6-3 majority on the court, progressive activists have been calling for the liberal Breyer, who at 82 is the oldest member on the bench, to step down this year while Democrats narrowly control the Senate.“It is time for Supreme Court Justice Stephen Breyer to announce his intent to retire,” the legal scholars say in a statement. “Breyer is a remarkable jurist, but with future control of a closely divided Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay.”The signatories include Niko Bowie of Harvard Law School, Erwin Chemerinsky and David Singh Grewal of the University of California, Berkeley, School of Law; Daniel Morales of the University of Houston Law Center; Samuel Moyn of Yale Law School, Zephyr Teachout of Fordham University; and Miranda Yaver of Oberlin College.The statement was released by Demand Justice, a progressive group mounting a concerted campaign to make Breyer consider his position, with everything from reproductive rights to voting rights and gun control potentially at stake.This week it is among 13 liberal groups, including Black Lives Matter, the Sunrise Movement and Women’s March, publishing an advertisement in prominent media outlets. It says: “Supreme Court Justice Stephen Breyer should immediately announce his intent to retire from the bench.“With future control of a closely divided Senate uncertain, President Biden must have the opportunity to nominate a successor without delay and fulfill his pledge to put the first Black woman on the Supreme Court.”The ad concludes: “If Breyer were replaced by an additional ultra-conservative justice, an even further-right Supreme Court would leave our democracy and the rights of marginalized communities at even greater risk. For the good of the country, now is the time to step aside.”While serving as majority leader, McConnell blocked Barack Obama from filling a vacancy left by the death of the conservative justice Antonin Scalia in February 2016, contending that it would be inappropriate to confirm a supreme court nominee during a presidential election year.McConnell and his fellow Senate Republicans refused to consider Obama’s nominee, Merrick Garland, who now serves as Biden’s attorney general. That enabled Donald Trump, the winner of the November 2016 election, to appoint the conservative justice Neil Gorsuch in 2017.Democrats accused McConnell of hypocrisy last year when he allowed the Senate to confirm Trump’s conservative nominee Amy Coney Barrett to replace the liberal justice Ruth Bader Ginsburg, who died in September, about six weeks before the 2020 presidential election.Christopher Kang, co-founder and chief counsel of Demand Justice, told the Guardian’s Politics Weekly Extra podcast: “I think certainly that looking back, and even at the time, a lot of people thought that the prudent thing for Justice Ginsburg to do to ensure her legacy would have been to retire.“I think this is the same conversation that a lot of progressives are having right now with respect to Justice Breyer, who is one of those three Democratic-appointed justices on the supreme court. He’s 82 years old. He could retire and we believe he should retire now and make way for the first Black woman to serve on the supreme court.Kang, who served in the Obama White House, added: “But it’s challenging because supreme court justices are nominated right now for life and the decision when to retire is completely up to them.“I was not part of the decision-making process at the time with respect to whether or not to reach out to Justice Ginsburg. I understand that the White House chose at the time not to do that but I think certainly looking at the impact of what happened, we could be in a very different place.” More
- in US Politics
McConnell: ‘Highly unlikely’ I would let Biden fill supreme court seat in 2024
The Senate minority leader, Mitch McConnell, said on Monday it was “highly unlikely” he would allow Joe Biden to fill a supreme court vacancy arising in 2024, the year of the next presidential election, if Republicans regained control of the chamber.“I think it’s highly unlikely – in fact, no, I don’t think either party, if it were different from the president, would confirm a supreme court nominee in the middle of an election,” McConnell told Hugh Hewitt, a conservative radio host.McConnell blocked Barack Obama from filling a vacancy in 2016, denying Merrick Garland, now attorney general, even a hearing after he was nominated to fill the seat vacated by the death of Antonin Scalia.McConnell said that was because no new justice should be seated in an election year – a position he reversed with alacrity in 2020, on the death of Ruth Bader Ginsburg two months before polling day.Ginsburg, a liberal lion, was replaced by the conservative Amy Coney Barrett, tipping the court 6-3 to the right. Major cases are coming up on abortion rights, gun control, affirmative action and more.McConnell claimed then, and repeated to Hewitt, that no new justice should be seated in an election year when the White House and the Senate are controlled by different parties.“I think in the middle of a presidential election,” McConnell said, “if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled.“So I think it’s highly unlikely. In fact, no, I don’t think either party if it controlled, if it were different from the president would confirm a supreme court nominee in the middle of an election. What was different in 2020 was we were of the same party as the president. And that’s why we went ahead with it.”Asked what would happen if a vacancy arose in 2023 with Republicans in control of the Senate, McConnell said: “We’ll have to wait and see what happens.”He also said keeping Scalia’s seat open – to be filled under Donald Trump by Neil Gorsuch – “is the single most consequential thing I’ve done in my time as majority leader of the Senate”.McConnell’s hardball tactics have contributed to his status as a hate figure among progressives. On Monday, much online reaction to his remarks focused on beseeching Stephen Breyer, a liberal and at 82 the oldest justice on the current court, to retire while Biden is in the White House and Democrats hold the Senate.Rick Hasen, a professor of law and political science at the University of California, Irvine, said: “Exactly as I wrote last week. McConnell will NOT fill a Breyer seat if he’s majority leader, even if he has to wait two years with the seat open.”Jeet Heer, a columnist for the Nation, wrote: “Can someone send this to USA supreme court justice Stephen Breyer. Thanks!”The conservative hold on the court was strengthened in 2018 when Anthony Kennedy, often a swing vote on civil rights issues, stepped down and was replaced by Brett Kavanaugh, once an official in the White House of George W Bush.Kavanaugh faced and denied allegations of sexual assault during a stormy confirmation but McConnell said he was “stronger than mule piss” in support and the process was duly completed.Breyer, appointed by Bill Clinton in 1994, has shown little inclination to follow Kennedy’s example and step aside for a younger justice.Last month, he angered some on the left by telling high school and middle school students the key to working with conservatives was to talk to them more.Among progressives, support is growing for countering conservative dominance of the court by increasing the number of justices. Republicans are stringently opposed.McConnell told Hewitt he wanted to give Breyer “a shout out, though, because he joined what Justice Ginsburg said in 2019, that nine is the right number for the supreme court, and I admire him for that. I think even the liberal justices on the supreme court have made it clear that court packing is a terrible idea.”The number of justices on the court is not fixed in the constitution. More
- in US Politics
Mapping the anti-trans laws sweeping America: ‘A war on 100 fronts’
On the first day of Pride month, the governor of Florida, Ron DeSantis, signed a law banning transgender girls from participating on girls’ sports teams in middle school through college.It was just one of 13 anti-trans bills conservative lawmakers in the US passed this year, and one of more than 110 bills that were proposed – by far the largest number in US history.This extraordinary legislative attack on trans rights has primarily targeted children and young adults and has dramatically escalated over the last several months, establishing anti-trans policy as a signature priority for state Republicans. The results could be catastrophic for vulnerable children, advocates and affected families say, given that the bills target healthcare, recreation and school life, with policies that intensify discrimination and exclusion of trans kids.The proposals have spanned 37 states, affecting nearly every region of the country, according to Freedom for All Americans, a not-for-profit that has tracked the bills and compiled data for the Guardian.While most legislative sessions have now ended and a majority of the bills failed, there are at least six anti-trans bills that remain active, in addition to the 13 laws that passed.“What we saw was unprecedented, and it was an avalanche,” said Jules Gill-Peterson, a professor of gender, sexuality and women’s studies at the University of Pittsburgh, and an expert on trans kids. “There’s this relentlessness and exhaustion. How do you fight a war on 100 fronts simultaneously?”The most common target: trans athletesThe most common anti-trans proposals were focused on sports, many of them specifically seeking to ban trans girls from competing on girls’ teams. Sports bills limiting the access of trans girls to teams have been passed this year in Arkansas, Florida, Mississippi and West Virginia. Bills that more broadly ban trans kids from playing on the teams that match their gender were signed into law in Alabama, Montana and Tennessee. (Arkansas also passed a second sports-related law that creates an enforcement mechanism for its ban.)In South Dakota, the sports bills failed, but the governor instead signed two executive orders banning trans girls from girls sports teams in K-12, and in college. There are several states where the legislative sessions are ongoing and these types of bans are still under consideration, including Michigan, Ohio, Pennsylvania and Wisconsin. In total more than 60 sports ban laws were proposed this year across 36 states.“It’s a piece of your life that you work so hard for, and for it just to be taken away is hard,” a 12-year-old swimmer and trans girl in Utah told the Guardian earlier this year. The proposed ban in her state ultimately failed.Other bills target gender-affirming healthcareThe bulk of the other anti-trans bills sought to outlaw gender-affirming healthcare, with at least 36 proposals related to medical treatments across 21 states. In April, Arkansas passed the first ban on affirming healthcare for youth, with a policy that threatens to discipline or revoke the licenses of doctors who provide it. Experts and clinicians had strongly objected, arguing that the state was prohibiting care that is considered standard and best practice, and advocates said it was one of the most extreme anti-trans bills to ever be enacted.Tennessee later adopted a more narrow anti-trans medical bill, which prohibited hormone treatments for “prepubertal minors”. Advocates noted that youth do not receive hormones pre-puberty and that this law would not disrupt existing care, but was nonetheless sending a hateful message.‘No goals here except discrimination’Five states also considered anti-trans bathroom bills, with Tennessee ultimately passing two separate laws. One prohibits trans kids from using bathrooms and locker rooms at school that match their gender. Another requires that if businesses allow trans people to use the correct bathrooms, they have to post a sign that says, “This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”Montana passed a law banning trans people from correcting the gender marker on their birth certificates if they haven’t undergone affirming surgery.“State legislatures prioritized mean-spirited, dangerous and unnecessary bills targeting transgender kids at a moment when states are still recovering from the pandemic,” said Hannah Willard, the vice-president of government affairs with Freedom for All Americans. “It was unconscionable.”Civil rights groups have begun filing lawsuits challenging the bills, some of which are scheduled to go into effect in July. These court battles could overturn or temporarily block the laws, but families have already reported fleeing their states to protect their kids. Some advocates have called on people in power to defy the laws, and the district attorney in Nashville has said he would not enforce one of the bathroom bills.Trans youth, who have repeatedly traveled to their state capitols to testify against the bills, said the political debates about their lives have worsened their mental health and anxiety.“It’s hard to describe the magnitude of damage that has been done,” said Gill-Peterson. “Even in the states where the bills didn’t pass, trans young people are living in an environment where prominent politicians have stated that it’s open season on their lives, that they don’t deserve basic human rights, that their lives are expandable or wrong, and that the people who love and care for them are somehow enemies of the Republican party.”She said she feared that the next legislative cycle would bring even more extreme bills, adding, “There were no goals here except discrimination, and cheap political points. And now, we are living in a more policed, more dangerous country for trans young people.” More
- in US Politics
Supreme court justice Stephen Breyer: Democrats must ‘get Republicans talking’
The supreme court justice Stephen Breyer has told young Americans Democrats facing Republican intransigence, obstruction and outright attacks on democracy should “get ‘em talking”, in search of compromise and progress.Breyer was speaking to middle- and high-school students on Friday, in an event organised by the National Constitution Center.The same day, Republicans in the Senate deployed the filibuster, by which the minority can thwart the will of the majority, to block the establishment of a 9/11-style commission to investigate the attack on the US Capitol by supporters of Donald Trump on 6 January.Thomas Kean, who led the 9/11 panel, told the Guardian the Republican move was “democracy’s loss”.From the White House, Joe Biden faces Republican reluctance to engage on his plans for investment in infrastructure and the pandemic-battered economy. Amid concerted attacks on voting rights in Republican states, federal bills to protect such rights seem unlikely to pass the Senate.“You need that Republican’s support?” Breyer told the listening students. “Talk to them … You say, ‘What do you think? My friend, what do you think?’ Get ’em talking. Once they start talking eventually they’ll say something you agree with.”Democrats do not agree with Trump’s lie that his election defeat by Biden was the result of electoral fraud, which fuelled the deadly attack on the Capitol. Nor do they agree with Republican attempts to overturn Roe v Wade, the 1973 supreme court ruling which safeguards a woman’s right to abortion.The court has a 6-3 conservative majority, after Republicans ripped up precedent to block Barack Obama’s final appointment then installed three justices under Trump, in the last case reversing their own position on appointments in the last year of a presidency.Breyer was speaking less than two weeks after the court agreed to hear a major challenge to abortion rights.The case, which the justices will hear in their next term, beginning in October, involves an attempt by Mississippi to revive a law that bans the procedure after 15 weeks of pregnancy.In 2019 the conservative Clarence Thomas, who has backed abortion restrictions, urged the court to feel less bound to upholding precedent. Asked about the value of adhering to past rulings, Breyer said the court should overturn precedent only in the “rare case where it’s really necessary” and said law is about stability.“The law might not be perfect but if you’re changing it all the time people won’t know what to do, and the more you change it the more people will ask to have it changed, and the more the court hears that, the more they’ll change it.”Many on the left seek change on the court, in the form of Breyer’s retirement. After the death of the progressive champion Ruth Bader Ginsburg at 87 last September, Breyer, at 82, is the oldest judge on the panel. Ginsburg was replaced by Amy Coney Barrett, a strict Catholic widely seen as likely to favour overturning precedent on abortion.Brett Kavanaugh, another conservative justice, was installed by Republicans after Anthony Kennedy retired, a move supported by the Trump White House. Kennedy was conservative but a swing vote on key rulings regarding individual rights. Kavanaugh, once an aide to President George W Bush, is more reliably rightwing.Breyer told the students, aged between 11 and 18, that as part of his daily routine he watches reruns of M*A*S*H, a hit sitcom that ran from 1972 to 1983. He also rides a stationary bike and meditates.Questioned about deepening polarisation some fear may tear the US apart, Breyer said he was “basically optimistic”. For all of its flaws, he said, American democracy is “better than the alternatives”.He also urged his listeners to put “unfortunate things” in historical context.“It’s happened before,” he said. “This is not the first time that people have become discouraged with the democratic process. This is not the first time that we’ve had real racism in this country. It used to be slavery before that.” More
- in US Politics
Should Biden reform the supreme court? Politics Weekly Extra – podcast
Last week, the US supreme court agreed to hear a case that could significantly roll back abortion rights. This week, Jonathan Freedland speaks to Christopher Kang, former deputy counsel to President Obama, about calls to restructure the highest federal court in the country
How to listen to podcasts: everything you need to know
Christopher Kang spent several years working in the White House when Barack Obama was in office. Now he is the co-founder and chief counsel of Demand Justice, an organisation pushing for Congress to pass a bill that would allow the addition of four seats to the US supreme court, diluting the majority conservatives currently have on the bench. Jonathan questions the consequences of such an act, whether there is another way to restore balance, and the politics behind such a radical move. More
- in US Politics
Will rule of law succeed where Congress failed and hold Trump accountable?
Standing in court, the former president pleaded not guilty to charges of financial crimes that he insists are part of a politically motivated witch hunt. Jacob Zuma, once the populist leader of South Africa, cut a humbled figure on Wednesday – and offered a potential glimpse of America’s future.A similar fate for Donald Trump became significantly more likely with reports that New York prosecutors have convened a grand jury to decide whether to indict him on criminal charges.The jurists will examine evidence gathered during the Manhattan district attorney’s two-year investigation into the former US president’s business dealings and alleged hush money payments to women on his behalf.There is a long way to go, but it is a sign that the long arm of the law may reach parts where Congress, in particular the Republican party, consistently failed by holding Trump accountable for his actions.Prosecutors have a decent chance of maintaining the perception of independence because the decision whether to bring charges rests with a jury of citizens studying evidence in secret rather than with Democrat Joe Biden’s department of justice.Biden and his attorney general, Merrick Garland, will be sure to stay as far away from the case as possible to avoid any hint of political interference. If the jury goes against him, Trump would be the first former US president charged with a crime.This would surely produce the trial of the century, a fittingly Trumpian spectacle dominating every screen. Neal Katyal, a former acting solicitor general, told the MSNBC network: “I think it’s a potential sign that it looks like Donald Trump is moving on from the presidency to his next turn on TV, which is as a defendant.”A criminal conviction and jail sentence would be seen by America’s admirers as evidence of the rule of law – and by its detractors as the vindictive pursuit of a former leader reminiscent of a failing state.Trump is bound to play on such fears when he soon resumes campaign rallies. He said in a statement on Tuesday: “This is a continuation of the greatest Witch Hunt in American history.”He added pointedly: “Interesting that today a poll came out indicating I’m far in the lead for the Republican Presidential Primary and the General Election in 2024.”The fact that the message is tired and predictable makes it no less potent among his core supporters. Special counsel Robert Mueller’s Russia investigation, and the Democrats’ impeachment of Trump over his quid pro quo with the Ukraine, became regular foils for Trump on the campaign trail.When the rallies resume, expect to hear these golden oldies combined with some new material: how the 6 January insurrection was actually a fun day out with supporters kissing police, only to be hijacked by Antifa; and how the Manhattan district attorney’s case is a Democratic conspiracy designed to thwart any Trump reelection plans.Prosecutors cannot allow such nonsense to blow them off course; Trump will always find some grievance to weaponise. With the help of rightwing media and an acquiescent Republican party, it might secure him millions of votes but not enough to win the national popular vote and, current polls suggest, not the electoral college.A Trump 2024 election campaign depends on numerous variables: his age (he turns 75 next month), the lure of the golf course, how Republicans fare in the 2022 midterm elections, whether Republicans produce a viable alternative and how Biden’s economy performs. But the grand jury could scuttle it before it begins.In America, anything is possible. Four or five years from now, Trump might be back in the White House – or he might be in prison. Only the brave or foolhardy would bet which. More
- in US Politics
Trump’s revenge: tilting of supreme court to the right poised to bear fruit
Donald Trump’s presidency was capricious and chaotic, but there was one issue on which he focused with laser-like discipline: tilting the judiciary to the right.Now America is about to reap that harvest. In the next year the supreme court is set to consider healthcare, voting, LGBTQ rights, guns and, most explosively, abortion. The cases provide a vivid demonstration of how, after being rejected at the ballot box, conservative partisans could push their agenda through the courts instead.“Next year’s supreme court term is shaping up to be the revenge of Donald Trump,” said Edward Fallone, an associate professor at Marquette University Law School.It was always said that, long after the tweets and leaks were forgotten, Trump’s judicial legacy would endure. He appointed 234 judges, including 54 appellate judges, outpacing Barack Obama’s first term total of 172 and George W Bush’s 204.The blitz included three supreme court justices, most recently Amy Coney Barrett, a devout Catholic, who replaced Ruth Bader Ginsburg following the liberal linchpin’s death, handing conservatives a 6-3 majority.Just after Barrett’s arrival and Joe Biden’s victory, the court heard arguments in a new challenge to Barack Obama’s signature healthcare law, the Affordable Care Act. A decision is expected soon. If the court’s conservatives overturn Obamacare, they would succeed where Republicans in Congress failed.That outcome is seen as unlikely, but the right is expected to fare better in two cases brought by Democrats contending that voting restrictions in Arizona are racially discriminatory. A ruling, expected soon, could make it harder to challenge dozens of other Republican-led voting measures in the wake of last year’s election.Another looming case involves a Roman Catholic adoption agency in Philadelphia that argues it is entitled to discriminate against potential foster parents on the basis of sexual orientation. Arguments at a hearing last November again implied that the conservative majority will rule in favour of the agency.The supreme court’s 2020-21 term offers further flashpoints. The nine justices will review a challenge to New York’s restrictions on people carrying concealed handguns in public. It will be the court’s first major gun rights case in more than a decade, even as Biden pushes for Congress to tackle America’s firearm violence epidemic.And, it emerged this week, America’s highest court will also consider a bid to revive a Republican-backed state law that would ban abortion after 15 weeks of pregnancy. The eventual ruling could undercut the seminal 1973 Roe v Wade decision that enshrined a woman’s right to abortion nationwide.Fallone believes the move is a sign that the court’s conservatives are no longer worried about Chief Justice John Roberts casting a decisive vote against them. “The only reason to take this case would be to overturn Roe,” he said. “They’re pretty confident they can succeed without it.”Despite holding the White House and both chambers of Congress, Democrats have few options in the short term. Fallone, who unsuccessfully ran for the Wisconsin supreme court as a Democrat, added: “I don’t really think realistically that there is much that the Democrats can do about the court. The conservative majority is going to be emboldened next term.“They’ve been waiting for that moment for a long time and it’s finally going to arise. The second amendment case involving the New York law against carrying firearms openly in public is also setting up next term to be a big win for conservatives potentially as well.”A commission established by Biden to study potential changes to the supreme court held its first meeting on Wednesday. It has six months to issue a report on reforms including possibly expanding the number of justices to 13, an idea championed by some liberal activists and Democratic members of Congress.Christopher Kang, co-founder and chief counsel of the pressure group Demand Justice, said: “From the gun violence prevention case to the abortion case, the Republican super majority on the supreme court is showing that it is full steam ahead with its ultra-conservative agenda regardless of what the country thinks.“Ultimately we have to grapple with the need for structural reform of the supreme court. We’re just starting to build the education and activism around this and gaining momentum in Congress. As the supreme court continues to take these grossly political steps, unfortunately they’re going to make the argument for us about why the supreme court needs to be reformed.”A bill to expand the court was introduced in Congress last month but Democratic moderates have expressed scepticism. Kang insisted: “Sooner or later, this is going to be a question that comes to the Democrats about how we’re going to preserve our democracy. The need to add supreme court seats, regrettably, is going to become very clear within the next couple of years.”Republicans have opposed the idea of expanding the number of justices, sometimes described as “court packing” and last seriously attempted by the Democratic president Franklin Roosevelt in the 1930s. They deny that they are using the courts as a workaround to subvert democracy and impose a form of minority rule.Curt Levey, president of the rightwing advocacy group the Committee for Justice, said: “I don’t see Biden’s narrow victory as an endorsement of abortion on demand, which is pretty much the current regime or, for that matter, as an endorsement of draconian restrictions on handguns. So I guess I don’t really see it as being out of step.“I think the opposite was true for many decades where the supreme court represented elite opinion that was out of touch with the majority. Perhaps for the first time, the supreme court is more in line with the American people generally. I certainly understand why the left is upset that they’ve lost an institution that helped them to implement their agenda.”In fact Biden won the national popular vote by 7m ballots. About six in 10 Americans believe abortion should be legal in all or most cases, according to the Pew Research Center, although the partisan split over the issue has deepened in recent years.Meagan Hatcher-Mays, director of democracy policy at the grassroots movement Indivisible, said: “Most people in the United States think that abortion should be legal and easy to access so it’s not really a political winner for Republicans, especially among suburban women, to go at women’s bodily autonomy like this legislatively.“If the courts do it, then they get what they want and they don’t face any blowback for it because it wasn’t them that did it. They didn’t pass a law that says abortion is bad; they got the supreme court to do it. And so that’s what this 40-year project has been about: stacking the courts with people that are conservative loyalists and who will do the unpopular dirty work of Republicans that they can’t get done legislatively.”It is a very long game. A recent article in the Atlantic magazine noted that Trump’s judges will not reach the peak of their influence until the early 2040s, when they are likely to lead nearly every appeals court at the same time.Hatcher-Mays warned: “The lower courts also have been hijacked, frankly, by people who are loyal not just to conservative values but Republican political outcomes. That was Trump’s big legacy. Not every case goes to the supreme court; a lot of them are decided at the lower level; a lot of those people that he picked are Trumpian-type judges. So that’s really, really scary.” More
