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      ‘Warped history’: how the US supreme court justified gutting gay rights

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      The extreme religious right’s mission to roll back civil rights from abortion to public accommodations is being fueled by false facts and false history. Recent articles in the New Republic have documented the shaky factual foundation behind 303 Creative LLC v Elenis, the case in which the supreme court held that a website design business owned by an evangelical Christian, Lorie Smith, could refuse service to same-sex couples. Even more troubling, the history undergirding the majority’s reasoning is misleading and dangerous to the separation of church and state.Tragically, the religious right knows it has a friendly audience in the six conservative Catholic justices on the supreme court, who have been partners in shaking the foundations of fundamental rights. The justices’ new standard is whether a constitutional right is grounded in “history and tradition”, the latest byword for the bogus doctrine of “originalism”. So they need some history, and apparently any history will do.The legal end to reach a thunderous ruling justifies their debatable means. So the concept of “religious autonomy”, built on a foundation of misleading scholarship, “impact” litigation and, above all, false history, has become the method for restricting rights. Its logic of power rests on its illogic; its warping of the constitution depends on the distortion of history.Tossing aside established historySince the first religious free exercise case in 1878, the supreme court has held that the first amendment protects belief absolutely, but speech and conduct reflecting those beliefs can be regulated if the government’s interest is strong enough.According to the founders, the reason speech and conduct should be subject to the law is the potential for harm. For example, as Justice Oliver Wendell Holmes famously remarked, it is illegal to shout “Fire!” in a crowded theater when there are no flames. It is also illegal to cover up child sex abuse or to let a child die from medical neglect despite religious motives. This foundational no-harm doctrine used to apply to all Americans. But now, with its recent decision, the conservative supreme court majority has carved out a gaping exception to the no-harm doctrine for the extremist Christian right, tossing aside established history.For the court to reach its holding that an evangelical website designer has a constitutional right to engage in invidious discrimination against same-sex couples, the majority fraudulently inflated the value of Smith’s speech from expressive conduct (regulatable) to highly valued “pure speech” (untouchable).Two conservative amicus groups, the Becket Fund and the Catholic League, provided the court with the necessary tools to assemble this phony argument by concocting fraudulent histories on the freedom of religious speech.Both the Becket Fund and the Catholic League rely heavily on a 1990 article by the conservative law professor Michael W McConnell that cherry-picks history to make the argument that the constitution mandates religious exemptions from the law. No legitimate scholar outside the realm of the religious right takes McConnell’s arguments seriously – they were thoroughly debunked by Philip Hamburger, Ellis West and myself 20 years ago. As I wrote in 2004, “the power to act outside the law–was not part of the framers’ intent, the framing generation’s understanding, or the vast majority–and the best–of the supreme court’s free exercise jurisprudence.”Unlike what the Becket Fund and the Catholic League wish the justices to believe, the historical truth is that the founders believed that obedience to the rule of law was necessary for true liberty. And it is the true history repeatedly stated in the sermons of the leading clergy of the late 18th-century United States. The most influential of them all, president of Presbyterian College of New Jersey (now Princeton University), the Rev John Witherspoon, who trained more framers than any other educator –including the architect of the constitution, James Madison – stated that the “true notion of liberty is the prevalence of law and order, and the security of individuals”. According to Israel Evans, chaplain of the American army in the Revolution and a friend of George Washington, when a believer “counteract[s] the peace and good order of society” and harms others, “he would be punished not for the exercise of a virtuous principle of conscience, but for violating that universal law of rectitude and benevolence which was intended to prevent one man from injuring another.”The founders believed churches should have the “power to make or ordain articles of faith, creeds, forms of worship or church government”, in the words of the congregational pastor, Rev Elisha Williams, rector of Yale University. Yet the ecclesiastical domain had to give way when others are hurt. As the founder Baptist Rev John Leland stated, the civil law is intended to constrain the actions that harm others and the public good: “[D]isturbers … ought to be punished.” Leland was close to Madison and Thomas Jefferson and influenced their views on separation of church and state. “Never promote men who seek after a state-established religion; it is spiritual tyranny – the worst of despotism,” Leland wrote.In short, the founders definitively rejected the notion that religious believers have special rights to avoid the duly enacted laws that apply to everyone else. The inconvenience of this deeply rooted historical fact must be glossed over by the Becket Fund and the Catholic League, because acknowledging it would undermine their entire argument.Exaltation of religious speech through revisionismThe argument for placing religious speech on a pedestal above all other speech is especially suspect. The Becket Fund argues that the freedom of religious speech has historically occupied a “preferred position” in the “constitutional order”, over other forms of speech. By “preferred” they mean untouchable by law. They even concoct a new label for valuable speech: “core religious speech”. The Fund’s so-called “history” argues that the freedom of speech started with the freedom of religious speech for churches, which then devolved to freedom of speech for legislators, and then finally individuals. The history they tick off is in fact a history of the suppression of religious dissenters’ speech, which was often brutal. From that bloody history, they conclude that at the founding, “the framers elected to follow a broad view of freedom of speech”.Yet their history is just spin. First, it’s not supported in the history of the first amendment itself. As they have to admit, “neither the debates in Congress nor the ratification debates within the several states shed light on the exact scope of the right protected, much less to what extent religious speech was covered.” Second, the first amendment’s free speech and press clauses were ratified in an era of vibrant political speech aired by a vital press. It is clear the founders believed that the press and political speech were highly valued, not ranked below that of religious speech in some recently invented imaginary hierarchy.skip past newsletter promotionafter newsletter promotionToday, the first amendment holds that political and religious speech are highly valued (though not one over the other), but at the time of the framing, the framers knew that when they limited the first amendment to the federal government, the state anti-blasphemy laws would stand. They placed political speech above dissenters’ religious speech. Thus, the first amendment was consistent with putting in jail those who criticized Christianity. Indeed, there were prosecutions for blasphemous and sacrilegious speech until Burstyn v Wilson in 1952, which held such a law unconstitutional. Of course, that is religious speech suppression. So much, in the light of the founders, for religious speech’s “preferred position” by history. What they really mean, based on their twisted interpretation, is that Christian speech has a preferred position.The Catholic League in fact leans into the fantastical concept of exalting a subset of religious speech over all other religious speech when it bizarrely attributes to the framers their acceptance of what they claim as Madison’s supposed view “that the governor of the universe supersedes any earthly authority, religious convictions were understood to command greater deference than mere personal opinions”.Justice Neil Gorsuch’s majority opinion elevates certain religious speech exactly as the Becket Fund and Catholic League suggest, and achieves this feat by intentionally misapplying free speech doctrine at its most basic. As a matter of law prior to this court, 303 Creative’s website design would have been expressive conduct. 303 Creative’s commercial speech is not the traditional, highly protected speech the court has recognized again and again: it’s not speech in a public park or on a public sidewalk or a parade. The speech is by a commercial business, whose product has expressive elements to it, which means it is expressive conduct, on which the public accommodation laws impose merely incidental burdens. However, the majority pulls a proverbial rabbit out of its hat by saying that the parties “stipulated” the commercial speech is “pure speech” – and so it must be. But that’s not how free speech cases are decided. The courts decide whether expression is traditionally highly protected, lesser valued speech, expressive conduct, or unprotected altogether. Hiding behind the parties’ stipulation is in derogation of the court’s duties and constitutional nonsense.Having transformed commercial expressive conduct into highly protected speech, Gorsuch nudged the law closer to McConnell’s debunked thesis of mandatory exemptions, which downplays any government interest. Gorsuch takes 12 pages to even acknowledge Colorado’s interest in public accommodations law, granting it one full paragraph and a quick tip of the hat: “The vital role public accommodations laws play in realizing the civil rights of all Americans.” Then he segues to suggesting that newer rights in the public accommodations laws haven’t been fully examined in the law. It’s easy to read between the lines: the majority is suggesting that LGBTQ+ discrimination isn’t nearly as bad as race discrimination; it’s a second-order interest. This is exactly what the Institute for Faith and Family argued with some dubious 14th amendment assertions. The disgraced John Eastman, writing for the Claremont Institute Center for Constitutional Jurisprudence, would have moved all the way to McConnell’s conclusion, arguing no state interest could possibly overcome the exalted speech of the wedding website. The court got very close.Dangerous movesThese are dangerous moves by the court that unleash biased and destructive religious speech and conduct. The founders would not recognize the lawless world this court is building.Let’s be frank. The extreme right Christian groups supporting 303 Creative are still burned up about the Obergefell decision, which enshrined gay marriage as constitutional. They have manufactured a fictional guarantee to so-called “pure speech” and trivialized the anti-discrimination laws to make up for the fact they lost the war on LGBTQ+ marriage.The majority’s decision in 303 Creative is, in fact, an expression of the Christian right’s constitutional sour grapes. The supreme court majority has deconstructed the first amendment to fit their Bibles.
      Marci A Hamilton is a professor of political science at the University of Pennsylvania More

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      The Shadow Docket review: how the US supreme court keeps sunlight out

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      Only a quarter of Americans have confidence in the supreme court. As the country strives to navigate a post-Roe v Wade world, the right to abortion removed, regard for the right wing of the court is scarcer still. Justices Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett and Samuel Alito have negative ratings with the public. Kavanaugh and Thomas are underwater by double-digits.Being perceived as a predator – Kavanaugh – engenders disdain or worse. Taking undisclosed gifts from a Republican mega-donor and being married to an election-denier who trades on her spouse’s judgeship – Thomas – triggers demands for renewed oversight.When Ginni Thomas visited the White House “you knew your day was wrecked”, said a senior Trump aide, according to the Daily Beast. This week came news that Clarence Thomas and Alito have not yet filed their financial disclosures and have received extensions. The circus rumbles on.Against such a backdrop, Stephen Vladeck, a professor at the University of Texas law school and CNN commentator, delivers The Shadow Docket.Under the subtitle “How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic”, Vladeck offers a well-researched indictment of how the supreme court has grown to rely on using procedural orders rather than rulings to make new law, escaping scrutiny while delivering major victories to the political right.The term “shadow docket” was coined in 2015, by William Baude, a University of Chicago law professor. In Vladeck’s words, it was “a catch-all for a body of the supreme court’s work that was, to that point, receiving virtually no academic or public attention”.Strictly speaking, the shadow docket is a vehicle for addressing issues that demand urgent attention, usually injunctions and orders to preserve the status quo. But it has morphed into a fraught topic. The court has adjudicated cases involving abortion, voting rights and Covid policy by means of the shadow docket. The docket also became the prime location for the elevation and reordering of religious rights, under the free exercise clause of the first amendment.Almost by definition, docket rulings are sparse. They are often unaccompanied by reasoning, Vladeck writes. “Invariably”, they lack “identification of how (or how many of) the justices voted and can be handed down at all times of day or, as has increasingly become the norm, in the middle of the night.”Vladeck knows his subject. In September 2021, he testified to the Senate judiciary committee about “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket”.He has also said: “What’s remarkable is that the court repeatedly acquiesced and acquiesced [to the right] … and almost always without any explanation.”On the page, he observes that few such Trumpian wins have resulted in actual binding precedents. Rather, shadow docket triumphs mainly satisfy political needs. Vladeck credits Noel Francisco, the solicitor general under Trump, and his deputy, for hatching the legal strategy that for example salvaged the Muslim travel ban and efforts to “build the wall” on the southern border without express congressional appropriation.SB-8, the Texas six-week abortion ban, provides a stark illustration of how the process continues to work. In September 2021, the supreme court did not formally opine on the constitutionality of the draconian Texas law. Instead, in an unsigned shadow docket order, a bare majority allowed the statute to slide into effect. It read:
      The application for injunctive relief or, in the alternative, to vacate stays of the district court proceedings presented to Justice Alito and by him referred to the court is denied.”
      The text made no mention of Roe, the 1973 ruling then in place, safeguarding federal abortion rights. But everyone could see what was coming.John Roberts, the chief justice, a George W Bush appointee, would have stopped the Texas law from going into effect, pending a decision on the merits. The statutory rubric was “unusual” and “unprecedented”, he wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large.”Months later, Roberts voted with the three liberals to save Roe. No matter. The court struck it down.Not everyone welcomes the attention Vladeck and others have brought to the use of the shadow docket. Alito publicly twitted the media for portraying it as something “sinister”, and depicting the court as “having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways”.On the other hand, Thomas’s friendship with the mega-donor Harlan Crowe should surely give any observer clear reason to pause.Elsewhere, Coney Barrett has denied that the court engages in results-oriented decision-making, urging an audience at the Reagan Library in April 2022 to “read the opinion” instead.Vladeck is unswayed: “It’s essential context to point out that, just two days later, she joined a 5-4 shadow docket ruling with no opinion for the public to read. It’s all part of the story – or, at least, it should be.”“The rise of the shadow docket … has negative effects on public perception of the court – and of the perceived legitimacy of the justices’ work,” Vladeck writes.The legitimacy of the court erodes.The Shadow Docket is comprehensive and sensitive to nuance, written for concerned audiences. Members of Congress, the bar, the press and engaged non-lawyers come to mind. Vladeck covers more than two centuries of legal history, together with the transformation of the court into a visibly co-equal branch of government.On Thursday night, news broke of 37 federal criminal counts against Donald Trump. The next election is 17 months away. The legitimacy and resilience of all US institutions stands to be tested like never before.
      The Shadow Docket is published in the US by Hachette 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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      Democrats to urge Biden to use 14th amendment powers to avert ‘global economic catastrophe’

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      As concerns about the debt ceiling heat up, a group of Democratic senators is planning to send Joe Biden a letter requesting he use his authority under the 14th amendment of the constitution to continue paying the US government’s bills, even if the debt ceiling is not raised.Democratic senators including Tina Smith, Elizabeth Warren, Ed Markey and Bernie Sanders, an independent, argued that Republicans are not negotiating “in good faith”. They called into question the GOP’s attempt to apply work requirements to programs like Medicaid and SNAP, which provide healthcare and food vouchers for low income family.“It is unfortunate that Republicans in the House of Representatives and Senate are not acting in good faith. Instead, Republicans have made it clear that they are prepared to hold our entire economy hostage unless you accede to their demands to reduce the deficit on the backs of working families. That is simply unacceptable,” reads the letter obtained by the Guardian.The letter has been circulated amongst lawmakers at a time when Biden has reportedly signaled some support to compromise on work requirements and rules for federal programs. But Democrats are increasingly concerned about what those negotiations could look like and are looking to the 14th amendment, a US civil war-era addition to the constitution, which states that the validity of public debt “shall not be questioned’”. This could potentially allow Biden to override Congress on the grounds that their failure to raise the ceiling is unconstitutional.But Biden previously expressed some doubt on that strategy. “I have been considering the 14th amendment,” Biden said last week. “And a man I have enormous respect for, Larry Tribe, who advised me for a long time, thinks that it would be legitimate. But the problem is it would have to be litigated.”Even so, those behind the letter are up against the Republican party, which has refused to make concessions such as raising taxes on the very wealthy.“We write to urgently request that you prepare to exercise your authority under the 14th amendment of the constitution, which clearly states: ‘the validity of the public debt of the United States … shall not be questioned.’ Using this authority would allow the United States to continue to pay its bills on-time, without delay, preventing a global economic catastrophe.” 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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      Supreme court justices think selves exempt from rules, top Democrat says

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      Dick Durbin, the Democratic chair of the Senate judiciary committee leading a push for supreme court ethics reform, accused the top court of being a panel of “nine justices [who] believe they are exempt from the basic standards of disclosure”.His claim came amid growing criticism of the conservative justice Clarence Thomas, whose judicial record is under scrutiny after he became embroiled in scandal over taking undeclared gifts from a Republican mega-donor.The last US Congress considered a bill demanding the inclusion of the supreme court in existing judicial conference regulations but it did not clear the Senate and the chief justice, John Roberts, has been mostly silent on the issue.Speaking to NBC’s Meet the Press on Sunday, Durbin said he hoped Roberts would take advantage of an invitation to testify before the judiciary committee on 2 May, to explain how he intended to handle ethics reform.“This is John Roberts’s court,” the Illinois Democrat said. “We are dealing with a situation where history will remember it as such. He is an articulate, well-schooled man when it comes to presenting his point of view. I’m sure he’ll do well before the committee.“But history is going to judge the Roberts court by his decision as to reform, and I think this is an invitation for him to present it to the American people.”Asked why he didn’t ask Thomas to appear, Durbin said: “I know what would happen to that invitation. It would be ignored. It is far better from my point of view to have the chief justice here.”Durbin’s statement that he thought all nine justices considered themselves above ethics standards came when he was asked what a code of conduct might look like.“[It] would look an awful lot like the code that applies to the rest of federal government and other judges, and basically would have timely disclosures of transactions like this purchase of the justice’s mother’s home,” he said, referring to Thomas’s failure to declare the sale to the mega-donor Harlan Crow.“It would also give standards for recusal so that if there’s going to be conflict before the court and recusal, it’d be explained publicly, and investigations of questions that are raised. It’s the same across the board code of conduct, ethics laws, applied to the court.“Why this supreme court, these nine justices, believe they are exempt from the basic standards of disclosure, I cannot explain.”Durbin’s invitation to Roberts did not mention Thomas, referring instead to “a steady stream of revelations regarding justices falling short of the ethical standards expected of other federal judges and, indeed, of public servants generally”.The court’s “decade-long failure” to address those problems has “contributed to a crisis of public confidence”, Durbin wrote.He said the 2 May hearing would focus on “the ethical rules that govern the justices of the supreme court and potential reforms to those rules”, noting that the “scope of your testimony can be limited to these subjects, and that you would not be expected to answer questions from senators regarding any other matters”. More

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      Nine Black Robes review: how Trump turned the supreme court right

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      Joan Biskupic is senior supreme court analyst at CNN, a Pulitzer finalist and an established biographer. In her latest book, she seeks to make sense of the court during and after the presidency of Donald J Trump, culminating last June when five conservative justices overturned Roe v Wade, the ruling which guaranteed access to abortion. In one swoop, the court gutted the rights revolution of the 1960s and 1970s.It was more important for the favourites of the Federalist Society to be “right” than smart. As we saw this week, Wisconsin Democrats say thank you.On the US supreme court, the majority in Dobbs v Jackson, the abortion ruling, said personal autonomy lacked constitutional safeguards unless explicitly enumerated in the text of the document. Precedents protecting the right to contraception, interracial marriage, same-sex relations and marriage now stand on shaky ground.“In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence and Obergefell,” Clarence Thomas wrote in his concurring opinion in Dobbs, referring to the rulings on contraception, same-sex relations and marriage.Thomas did not mention Loving v Virginia, which guaranteed the right to interracial marriage. He is Black. His wife, the far-right activist Ginni Thomas, is white.Biskupic knows the history of the court. In earlier biographies, she studied the chief justice, John Roberts, the liberal justice Sonia Sotomayor, the retired Sandra Day O’Connor and the late Antonin Scalia.As expected, Nine Black Robes is well researched. Biskupic plumbs the papers of the late William Brennan, a liberal appointed by Dwight D Eisenhower in 1956. But her book also contains more than its fair share of chambers chatter.Biskupic captures the unease of some court members at being used as props by Trump. They felt “tricked”. Trump assured them a party for Brett Kavanaugh, his second nominee, would not turn overtly political. It did.“Some justices told me later that they were sorry they had gone,” Biskupic writes.Among the “stone faced” justices at the White House, Thomas was “conspicuously enthusiastic, alone applaud[ing] heartily after Kavanaugh spoke”. Later, Thomas’s wife would seek to help Trump overturn an election.Biskupic also recounts tensions between Roberts and Neil Gorsuch, Trump’s first conservative pick for the court. Gorsuch did not attend his first scheduled justices-only meeting. Roberts’s entreaties meant little.According to Biskupic, Gorsuch penned dissents and chivvied other justices. For example, in Torres v Madrid, a police abuse case, he “suggested his colleagues were kowtowing to policing concerns and the Black Lives Matter movement”.In his dissent, Gorsuch asked: “If efficiency cannot explain today’s decision, what’s left? Maybe it is an impulse that individuals like Ms Torres should be able to sue for damages. Sometimes police shootings are justified, but other times they cry out for a remedy.”Gorsuch also accused the majority of a “schizophrenic reading of the word ‘seizure’”. The chief justice was not amused.“The dissent speculates that the real reason for today’s decision is an ‘impulse’ to provide relief to Torres,” Roberts noted. “There is no call for such surmise.”Comity and appearances do not weigh heavily on Gorsuch. As Biskupic notes, his mother, Ann Gorsuch Burford, was administrator of the Environmental Protection Agency under Ronald Reagan but was found in contempt of Congress, a first for an agency head. She resigned, feeling used.After less than a year on the court, Gorsuch spoke at the Trump International hotel in Washington, addressing a “Defending Freedom Luncheon” sponsored by the Fund for American Studies, a conservative group. As Biskupic notes, the hotel then stood “embroiled in litigation about unconstitutional financial benefit for the president who appointed him”.Gorsuch’s appearance may have been an act of contrition, designed to placate Trump’s wrath. Months earlier, Gorsuch reportedly conveyed criticism of the president to Richard Blumenthal, the Democratic senator from Connecticut, during a courtesy call. Trump’s attacks on the judiciary were too much even for Gorsuch.But he is not the only justice with limited bandwidth for playing nice. Biskupic “learned” that Sotomayor circulated “a blistering draft dissent” which caused colleagues to back off from barring racially conscious preferences in college admissions. Now, Sotomayor’s luck may be running out. In challenges to affirmative action at Harvard and the University of North Carolina, the court is expected to strike down race-based admissions.Two years ago, Sotomayor attacked Kavanaugh’s legal reasoning in a case that involved a juvenile life sentence without parole.“The court is fooling no one,” she thundered, in Jones v Mississippi. “The court’s misreading is egregious enough on its own … The court twists precedent even further.”Biskupic also considers Trump’s legal woes, reporting on deliberations surrounding a ruling in favor of Cy Vance Jr, then Manhattan district attorney, in June 2020. The court upheld a subpoena demanding eight years of Trump’s tax returns. Voting 7-2, the court rejected Trump’s contention that he was immune from investigation simply because he was president. A little more than two years later, Trump stands indicted in the same jurisdiction.“We cannot conclude that absolute immunity is necessary or appropriate under article II or the supremacy clause,” Roberts wrote in 2020. “No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.”But the margin of the decision was not preordained.Biskupic writes: “In their private telephonic conference, the Trump v Vance case produced a 5-4 split, I later learned, to affirm the lower-court judgment against Trump.”Roberts’s cajoling made a difference.“Over the course of two months he coaxed and compromised,” Biskupic writes. “Only Thomas and Alito declined to sign on.”Nowadays, Biskupic laments, “the court has no middle, no center to hold.“… Donald Trump, who had demonstrated so little respect for the law, truth and democracy, changed the balance for at least a generation.”
      Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences is published in the US by HarperCollins More

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      Republican Ted Cruz introduces bill to block US supreme court expansion

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      The Republican senator Ted Cruz, whose party defied convention to delay then rush conservatives on to the supreme court, has introduced a constitutional amendment to stop Democrats expanding the court in response.“The Democrats’ answer to a supreme court that is dedicated to upholding the rule of law and the constitution is to pack it with liberals who will rule the way they want,” Cruz said.“The supreme court should be independent, not inflated by every new administration. That’s why I’ve introduced a constitutional amendment to permanently keep the number of justices at nine.”There is no constitutional provision for how many justices sit on the court.Democrats say the current court is not independent of the Republican party.In 2016, when the conservative Antonin Scalia died Mitch McConnell, the Republican leader in the Senate, held the seat open until a Republican president, Donald Trump, could replace a Democrat, Barack Obama, and nominate Scalia’s replacement. Neil Gorsuch filled that seat.In 2020, Democrats were helpless again when Ruth Bader Ginsburg, a liberal lion, died shortly before the presidential election and McConnell changed course, rushing Amy Coney Barrett on to the court before Trump lost to Joe Biden.Those changes and the replacement of the retiring Anthony Kennedy with Brett Kavanaugh produced a court dominated, 6-3, by conservatives.Conservative justices including Coney Barrett and Clarence Thomas have claimed not to be influenced by political considerations.Coney Barrett notably did so, saying the court “is not comprised of a bunch of partisan hacks”, while standing next to McConnell at a political studies centre named for the Republican leader.Among conservative rulings passed down by the new super-majority, a May 2022 decision saw the court side with Cruz in a case concerning personal loans to campaigns. The three liberal justices said the ruling paved the way for corruption.But the Dobbs decision of last year, removing the right to abortion, most enraged Democrats and progressives.On the left, plans have been floated to increase the size of the court and thereby redress its ideological balance.Writing for the Guardian last year, David Daley, author of Ratf**ked: Why Your Vote Doesn’t Count, said: “The court’s hard-right majority has neither popular support for its agenda nor institutional legitimacy.“It is the product of a hostile takeover of the courts 50 years in the planning by conservatives who have long understood that unpopular policies … can be thrust upon Americans by an unaccountable and unelected judiciary.“The court must be expanded and reformed to counter a rightwing power play that threatens to remake American democracy and life itself.”Biden ordered a commission to study options for reform. It found bipartisan support for term limits for justices but reported “profound disagreement” on whether the court should be expanded. Biden has said he is “not a fan” of expanding the court.Cruz’s amendment has little chance of passing a Democratic-held Senate but 10 Republican senators supported it nonetheless.Josh Hawley of Missouri said: “For years the left has been desperate to pack the court to promote their radical agenda. We must ensure that we stay true to the court’s founding principles, maintain the precedent of nine justices, and keep the Democrats from their brazen attempts to rig our democracy.” More