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      US supreme court agrees to consider abortion pill access

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      The US supreme court on Wednesday agreed to hear oral arguments in a case that could determine the future of a pill used in most abortions in the US, in the first major abortion rights case to land at the country’s highest court since the justices overturned Roe v Wade and abolished the national right to the procedure in 2022.A decision in the case will probably arrive in summer 2024, just months before the presidential election. The outcome of the case could affect not just access to the pill, which has been repeatedly deemed safe and effective, but the Federal Drug Administration’s authority to regulate all manner of medications.The drug at the heart of the case is mifepristone, one of the two drugs typically used in medication abortions, which make up the majority of US abortions. Last year, an association of anti-abortion organizations and doctors, the Alliance for Hippocratic Medicine, filed a federal lawsuit arguing that the FDA had overstepped its authority when it approved mifepristone in 2000.In April, a Texas federal judge appointed by former president Donald Trump issued a preliminary ruling to suspend the FDA’s approval of mifepristone and pull the medication off the market. The US court of appeals for the fifth circuit – one of the most conservative federal appeals courts in the US – ruled in August that, while it was too late to suspend the FDA’s approval, the agency should significantly restrict access to mifepristone. The Biden administration and Danco Laboratories, which manufactures mifepristone, then asked the supreme court to weigh in on the case.The supreme court paused lower-court rulings while the case plays out, so mifepristone remains widely available in states that permit abortion. If the court allows the fifth circuit ruling to stand, it would roll back recent FDA efforts that refined the drug’s dosage and expanded access by allowing it to be prescribed later on in pregnancy and through telehealth.On Wednesday, the supreme court agreed to hear the consolidated petitions from the Biden administration and Danco Laboratories, which asked the justices to focus on the legal attempts to roll back those later FDA efforts. Those petitions also asked the justices to consider whether the challengers have the legal right, or standing, to bring the case in the first place.“You can’t just bring random lawsuits in court. You actually have to have been harmed by something,” said Greer Donley, an associate law professor at the University of Pittsburgh Law School. “That’s really what standing analysis is all about, to try to figure out if if the people who bring the lawsuit actually have a stake in the case.” Numerous legal experts have questioned whether the challengers in this case have properly demonstrated that they have been harmed by mifepristone’s continued legality.The supreme court also denied a petition from the Alliance for Hippocratic Medicine that asked the justices to explicitly consider the FDA’s 2000 approval of mifepristone. That move suggests that the supreme court is unlikely to pull mifepristone off the market entirely.In Donley’s view, the outcome of this case will probably signal whether the supreme court, which is controlled 6-3 by conservatives, wants to be involved in the post-Roe war over abortion rights. If the justices decide to focus on the standing issues in the case, they could sidestep having to rule on the substance of the case entirely.“I could see the more moderates on the supreme court thinking: ‘we don’t want to touch this,’” Donley said. “It might make the supreme court look like less of an activist court if it were to dismiss this case on the basis of really legitimate standing problems.”Any ruling by the court would affect all 50 states, including those that have protected abortion rights. (In recent months, officials in states such as Washington and California have announced that they have begun to stockpile mifepristone.)A ruling could also imperil the FDA’s regulatory power writ large and pose an existential threat to pharmaceutical companies. If courts can rewrite the FDA’s approval of abortion pills, any kind of drug – including, for example, drugs used to protect against HIV or to provide gender-affirming care – could end up in conservative jurists’ crosshairs.The ruling from the federal appeals court, Danco Laboratories warned in its briefs to the supreme court, “destabilizes the pharmaceutical and biotechnology industries by questioning when scientific studies – accepted by FDA – are sufficient”. More than 100 studies, conducted across 26 countries, have concluded that mifepristone is safe, a New York Times review found.If deprived of access to mifepristone, several abortion clinics have said that they would keep providing medication abortions using only misoprostol, the other drug typically used in medication abortions. Although misoprostol-only abortions are still overwhelmingly safe, they can have more side-effects and are slightly less effective than the two-drug protocol.Ultimately, regardless of how the supreme court rules, its decision will not curtail the thriving underground networks that routinely supply mifepristone to women looking to end their pregnancies, including in the 16 states with near-total abortion bans. In fact, a move to ban mifepristone is likely to cause a sharp rise in demand for the drug through those networks.In the wake of Roe’s fall, a vast web of abortion rights supporters and opportunistic merchants have sprung up to ship abortion pills to Americans. Inducing your own abortion is not illegal in most US states, even in states that have banned in-clinic abortions, and medical experts widely agree that it can be safe to use pills to “self-manage” an abortion early in pregnancy. More

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      US supreme court to hear January 6 appeal that could affect Trump trial

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      The supreme court on Wednesday said it will hear an appeal that could upend hundreds of charges stemming from the Capitol riot, including against the former president Donald Trump.The justices will review an appellate ruling that revived a charge against three defendants accused of obstruction of an official proceeding. The charge refers to the disruption of Congress’s certification of Joe Biden’s 2020 presidential election victory over Trump.That is among four counts brought against Trump in the special counsel Jack Smith’s case that accuses the 2024 Republican presidential primary frontrunner of conspiring to overturn the results of his election loss. Trump is also charged with conspiracy to obstruct an official proceeding.The court’s decision to weigh in on the obstruction charge could threaten the start of Trump’s trial, currently scheduled for 4 March. The justices separately are considering whether to rule quickly on Trump’s claim that he cannot be prosecuted for actions taken within his role as president. A federal judge has already rejected that argument.The supreme court will hear arguments in March or April, with a decision expected by early summer.The obstruction charge, which carries up to 20 years behind bars, has been brought against more than 300 defendants and is among the most widely used felony charges brought in the huge federal prosecution following the deadly insurrection on 6 January 2021, when a mob of Trump supporters stormed the Capitol in an attempt to keep Biden, a Democrat, from taking the White House.At least 152 people have been convicted at trial or pleaded guilty to obstructing an official proceeding, and at least 108 of them have been sentenced, according to an Associated Press review of court records.A lower-court judge had dismissed the charge against Joseph Fischer, a former Boston police officer, and two other defendants, ruling it did not cover their conduct. The justices agreed to hear the appeal filed by lawyers for Fischer, who is facing a seven-count indictment for his actions on January 6, including the obstruction charge.The other defendants are Edward Jacob Lang, of New York’s Hudson valley, and Garret Miller, who has since pleaded guilty to other charges and was sentenced to 38 months in prison. Miller, who is from the Dallas area, could still face prosecution on the obstruction charge.Judge Carl Nichols of the US district court found that prosecutors stretched the law beyond its scope to inappropriately apply it in these cases. Nichols ruled that a defendant must have taken “some action with respect to a document, record or other object” to obstruct an official proceeding under the law.The justice department challenged that ruling, and the appeals court in Washington DC agreed with prosecutors in April that Nichols’s interpretation of the law was too limited.Other defendants, including Trump, are separately challenging the use of the charge.More than 1,200 people have been charged with federal crimes stemming from the riot, and more than 700 defendants have pleaded guilty. More

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      Jack Smith just made a gutsy, momentous decision in his prosecution of Trump | Margaret Sullivan

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      Timing isn’t everything. But it certainly matters, and seldom more so than in special counsel Jack Smith’s prosecution of Donald Trump.The former US president intends to use timing – delay, delay, delay – to avoid punishment for trying to overturn the 2020 election, which he lost to Joe Biden, and for fomenting a violent coup.Nope, said Smith this week. A tough guy who has prosecuted war crimes in the Hague, Smith clearly recognizes that putting off the case until after next fall’s presidential election could let Trump off the hook.So the prosecutor made a bold legal maneuver. Smith moved to bypass the court of appeals, whose involvement could slow things down considerably, and to go directly to the US supreme court for a decision on a foundational issue.He wants the US’s highest court to rule – immediately – on whether Trump, as he claims, is immune from criminal prosecution.“Jack Smith wants to cut straight to the chase,” writes former US attorney Joyce Vance, noting that the supreme court has never decided this issue before.Should the court rule in Trump’s favor on immunity, the case goes away. That looks like a gamble, but the case is headed to the supreme court anyway.The key question is rather simple.Is Trump above the law? Or, like every other US citizen, must he abide by it?Smith’s maneuver was heralded by several prominent legal experts.“A huge and possibly brilliant move, a game changer one way or the other,” Harry Litman, a former justice department official who teaches constitutional law, wrote on Twitter/X.So far, the signs are encouraging. The court granted Smith’s request to speed up the question of whether to hear the case, asking for a quick response from Team Trump.In other words, the court quickly agreed to decide whether to decide the case, an important first step.Of course, this supreme court doesn’t exactly inspire confidence, given its terrible rulings on voting rights and abortion rights and the appalling ethical malfeasance of some of its members.But even this tainted court probably doesn’t want to be associated for all time with the notion that a US president is above the law.Watching Jack Smith’s aggressive efforts throughout this prosecution, I can’t help but think of two earlier high-level legal situations involving presidents.One was decades ago, during the Watergate scandal, when the supreme court ruled that President Nixon’s tape recordings were fair game; Nixon had appointed some of those justices but the ruling was unanimous nonetheless.That ruling was among the many contributing factors in holding Nixon accountable, to some extent, for the crimes he encouraged while in office. Ultimately, of course, he resigned and was pardoned by his successor, Gerald Ford.The other, much more recent, was the way special counsel Robert Mueller handled the investigation into whether Trump and his allies played ball with Russian operatives in order to sway the outcome of the 2016 presidential election.Unlike Smith, Mueller was particularly rules-bound and reserved. He never wanted to rock the procedural boat. His extremely low-key approach hampered the outcome of his important investigation.With the help of attorney general Bill Barr’s dishonest work in interpreting it favorably on Trump’s behalf, Mueller’s report dwindled into something that ultimately didn’t matter much – though it should have. Trump ran around claiming he was entirely cleared and that it was all a hoax, though that was far from true.Smith is a different cat. Thinking strategically at all times, he knows he needs to stay on track for a March trial date in order to hold Trump accountable.If that doesn’t happen, the strategy of delaying the trial until after the November election could – if Trump is elected – allow him to install an unpatriotic loyalist as attorney general and wriggle out of the mess that he created.That makes what happens next so consequential. (Smith wisely is hedging his bet by asking the court of appeals to rule immediately, too, should the supreme court decide not to take on the matter after all.)“It may be the most important democracy decision of our lifetimes,” Norm Eisen, a senior fellow at the Brookings Institution, has argued.Could be – for two reasons.One is that some members of the voting public, the non-cult members at least, might be affected by a guilty verdict. Given Trump’s obvious authoritarian plans for a second term, his election could be a death knell for US democracy.The other is that no president, or former president, should be above the law.Let’s hope that the supreme court – whatever its shortcomings – does its duty, takes on this question, and rules in accordance with our nation’s founding principles.
      Margaret Sullivan is a Guardian US columnist More

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      Special counsel deals deft blow to Trump’s bid to delay federal trial

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      Donald Trump’s attempt to delay his impending federal trial on charges over his efforts to overturn the 2020 election results may have been dealt a deft blow by special counsel prosecutors, after they directly asked the US supreme court to resolve whether the former president can be criminally prosecuted.Earlier this month, Trump asked the US court of appeals for the DC circuit to reverse a decision by the trial judge rejecting his motion to dismiss the case on presidential immunity grounds. On Monday, the special counsel Jack Smith sought to bypass the DC circuit by asking the supreme court to resolve the issue.While the supreme court has increasingly agreed to hear cases before an appeals court judgment, especially for constitutional questions related to presidential power, the petition from the special counsel puts Trump in a fraught situation regardless of whether it takes up the matter.Later on Monday, the court indicated it would decide quickly on whether to hear the case, ordering Trump to file his reply to the filing from the special counsel Jack Smith within nine days – by 20 December – a deadline widely considered to be particularly expeditious.The problem for Trump is that his hands are tied. The former president would prefer the court to take up the case after the DC circuit rules because he’s eager to delay his impending trial as much as possible. But he can’t oppose the prosecutors’ request now and then make the same request in several months’ time.If Trump had his way, according to people close to his legal team, he would have wanted the DC circuit to go through the likely months-long appeals process before going to the supreme court. That process would have included setting a briefing schedule, oral arguments and then issuing a ruling.The federal 2020 election interference trial is currently set for trial on 4 March, the day before Super Tuesday, when 15 states are scheduled to hold Republican primaries or caucuses. Trump, the frontrunner for the GOP nomination, has been adamant that he did not want to be stuck in a courtroom.Trump has also made no secret that his overarching legal strategy, for all of his criminal cases, is to pursue procedural delays. If the cases do not go to trial before next year’s election and he wins a second term, then he could direct his handpicked attorney general to drop all of the charges.And even if the case did go to trial before November, the people said, Trump’s preference would have been for the trial to take place as close as possible to the election because it would have given his 2024 campaign ammunition to miscast the criminal case against him as political in nature.Yet with the special counsel moving to circumvent the DC circuit, Trump and his legal team have effectively been forced to grapple with the supreme court plank of his delay strategy far earlier than they had expected.The eventual outcome could still be good for Trump: the justices could, for now, deny the request to review the lower court’s decision – a process known as certiorari – and instruct the special counsel to resubmit his request after the DC circuit issues a decision. Alternatively, the justices could grant certiorari and a majority rule in Trump’s favor.skip past newsletter promotionafter newsletter promotionBut even with a conservative-leaning supreme court, those are the more unlikely options, according to the supreme court expert Steve Vladeck. The more likely outcome is that the court grants certiorari and rules against Trump – thereby eliminating the additional months of delay he had anticipated.The probability that the supreme court rules against Trump on his presidential immunity claim, if it hears the case, is seen as a more likely scenario in large part because Trump’s interpretation is so far-reaching and without precedent in criminal caselaw.The motions to dismiss submitted by Trump’s lawyers contended that all of his attempts to reverse his 2020 election defeat in the indictment – including trying to obstruct the January 6 congressional certification – were in his capacity as president and therefore protected.And at the heart of the Trump legal team’s filing was the extraordinary contention that Trump both was entitled to absolute presidential immunity and that the immunity applied whether or not Trump intended to engage in the conduct described in the indictment.The issue is considered ripe for the supreme court because while it has previously ruled that presidents have expansive immunity in civil lawsuits, it has never explicitly ruled on whether presidents can face criminal charges for crimes they are alleged to have committed while in office. More

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      Special counsel asks US supreme court to rule on Trump’s claim of immunity

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      Special counsel prosecutors on Monday asked the US supreme court to make an expedited decision on whether Donald Trump can be criminally prosecuted on federal charges over his efforts to overturn the results of the 2020 presidential election.The move amounts to an attempt by prosecutors to bypass Trump’s recent appeal to the DC circuit after the federal judge overseeing his case rejected the notion that he had immunity for acts he committed during his presidency.The petition to the supreme court shows prosecutors were concerned that going through the appeals process – submitting briefs, scheduling oral arguments and waiting for a decision while the case remained frozen – could delay the March 2024 trial date.Trump has made no secret of the fact that delaying the trial as long as he can remains his overarching legal strategy. If it was postponed until after next year’s presidential election and Trump won, he could direct his attorney general to drop the charges.“This case presents a fundamental question at the heart of our democracy: whether a former president is absolutely immune from federal prosecution for crimes committed while in office or constitutionally protected from federal prosecution when he has been impeached but not convicted,” the petition said.The request that the supreme court grant what is known as certiorari before the appeals court issues judgment is unusual. It is typically used in cases of national crises, like when Richard Nixon refused to hand over White House tapes to a special prosecutor.By citing US v Nixon and asking for expedited treatment in their petition, prosecutors essentially contended to the supreme court that they consider the Trump case of equal magnitude and constitutional consequence.“The United States recognizes that this is an extraordinary request,” the filing said. “This is an extraordinary case.”The supreme court has previously ruled that presidents have expansive immunity in civil lawsuits but has never explicitly ruled whether presidents can face criminal charges for crimes they are alleged to have committed while in office.Whether the court will take up the case remains uncertain, but it has increasingly granted certiorari before an appeals court judgement in recent years, and especially for presidential power cases, according to research by supreme court experts Steve Vladeck and David Merlinsky.The prosecutors on the filing included the special counsel Jack Smith himself, two of his deputies JP Cooley and James Pearce, as well as veteran supreme court litigator Michael Dreeben, who was also formerly a top appellate litigator for special counsel Robert Mueller in the Russia investigation.Having the case go to trial in Washington after the election would also mean voters would not know the full extent of the evidence of Trump’s attempts to reverse his 2020 defeat before deciding whether to give him a second term in the White House.“It is of imperative public importance that respondent’s claims of immunity be resolved by this court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected,” the petition said. “Only this court can definitively resolve them.”Last week, the presiding US district judge Tanya Chutkan rejected Trump’s claims that he enjoyed absolute immunity through a sweeping interpretation of executive power, arguing the former president could not be held accountable for actions undertaken in office.“Defendant’s four-year service as commander in chief did not bestow on him the divine right of kings to evade criminal accountability that governs his fellow citizens,” Chutkan wrote in her 48-page opinion.Trump swiftly challenged the denial of his motion to dismiss to the US court of appeals for the DC circuit. Notably, the ex-president also asked Chutkan to freeze all aspects of the 2020 election subversion case until the question was resolved.The motions to dismiss submitted by Trump’s lawyers contended that all of his attempts to reverse his 2020 election defeat in the indictment were in his capacity as president and therefore protected. Those actions ranged from pressuring his vice-president, Mike Pence, to stop the congressional certification to organizing fake slates of electors.At the heart of the Trump legal team’s filing was the extraordinary contention that Trump both was entitled to absolute presidential immunity and that the immunity applied whether or not Trump intended to engage in the conduct described in the indictment. More

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      Sandra Day O’Connor obituary

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      Sandra Day O’Connor, who has died aged 93, had two principal claims to fame. The first was indisputable: she was the first woman to serve as a justice of the US supreme court, holding office from 1981 to 2006. The second claim was less certain but widely believed among her fellow US citizens – that hers was the key vote that put George W Bush rather than Al Gore into the White House after the cliffhanging election of 2000.With the outcome dependent on Florida’s 25 electoral college votes, both candidates had asked a succession of state and federal courts to rule on the validity of Florida’s ramshackle voting procedures. A three-week succession of contradictory judicial rulings inevitably brought the case before the US’s highest court.By this time O’Connor had already served in the supreme court for nearly two decades and had repeatedly cast the deciding vote in a succession of 5-4 judgments by the nine justices. With the court more or less evenly divided between conservatives and reformers, she had emerged as the reliable centrist in a wide range of criminal, social and political decisions.The presidential election case centred on a Florida supreme court ruling that had extended the deadline for vote recounts. The inexorable reference to the US supreme court was greeted with private dismay by the justices. One of the conservatives, Clarence Thomas, later told a congressional hearing: “If there was a way … to have avoided getting involved in that very difficult decision and simultaneously living up to my oath, I would have done it.”The ostensible issue was a narrow technical point with, as it turned out, vast international consequences. In her questioning, O’Connor repeatedly asked whether the Florida court was trying to change the rules in the middle of the election (a breach of the constitutional requirement for equal protection under the law).Eventually, with her colleagues split down the middle, she voted to stop the recount, overturning the Florida judgment, and in effect awarding the election to Bush. There were, of course, immediate accusations that her Republican background had determined her decision.Justice John Paul Stevens, one of those in the minority, warned that by questioning the impartiality of the Florida courts, the supreme court’s decision undermined confidence in judges, which “is the true backbone of the rule of law”. In his dissenting judgment he declared: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”In 2013, O’Connor herself expressed misgivings that the supreme court had taken on the Bush v Gore case at all, saying that the case “stirred up the public” and “gave the court a less than perfect reputation”.The supreme court had been an all-male institution for 191 years when President Ronald Reagan nominated O’Connor as its 102nd associate justice in 1981, elevating her from the Arizona court of appeals.She joined the eight men at the top of the legal hierarchy largely because Reagan had got himself into a political hole in his 1980 bid for the presidency, by opposing a constitutional move to outlaw sexual discrimination.The Equal Rights Amendment was a lively issue because, though Congress had passed it in 1972, its ratification by the required 38 state legislatures missed the 1979 deadline, which was then extended to June 1982. With two years to go and three ratifications needed for victory, supporters ferociously lobbied the 1980 presidential candidates in the last chance they had for effective political action. (The amendment eventually died in November 1983 for want of state support.)Reagan found himself squeezed between the demands of a block of increasingly significant female voters and the resistance of the die-hard Republican right. The battle over the amendment had, inevitably, become entwined with that about abortion. In an effort to divert this complex row Reagan promised that one of his first nominations to the supreme court would be a woman.He was called on to honour this pledge far sooner than he expected. Barely had he arrived in the White House than Justice Potter Stewart announced his retirement. In his memoirs, Reagan said that his brief to the attorney general had been to find a female judge “who would interpret the constitution, not try to rewrite it”.O’Connor was nominated because, he wrote, “everything we had learned about her during our months of searching convinced me she was a woman of great legal intellect, fairness, and integrity – the antithesis of an ideological judge, and just what I wanted on the court”.His judgment in this instance turned out to be a great deal sounder than many of his others. Over the following decades O’Connor became a widely respected judge – and was seen by many as a strong contender to follow William Rehnquist as chief justice – and she established herself as one of the most important voices in the supreme court. Time and again she faced a 4-4 split in the court’s provisional opinions and was called upon either to devise a compromise before the formal judgment was proclaimed or, if compromise was impossible, to join one of the factions. Hers was the deciding vote on many controversial cases, when she often sided with her more liberal colleagues, including on gender equality cases, affirmative action and in upholding for many years the landmark abortion ruling Roe v Wade.Her instinct was always to err on the side of judicial restraint and to accept the judgment of state courts, unless there appeared compelling grounds for federal intervention; this issue of states’ rights, enshrined in the 10th amendment, lies at the heart of US government and is often the foundation of political and legal disputes.O’Connor had an unusual background for a supreme court justice. Describing herself as a “cowgirl from the Arizona desert”, she was born in El Paso, Texas, the daughter of Ada Mae (nee Wilkey) and Harry Day, and grew up on the 198,000-acre ranch her grandfather had acquired on the Arizona-New Mexico border in 1880, later leaving home to live with her grandmother in El Paso so that she could attend a private girls’ school.From there she went to Stanford University in California, gaining a first in economics and then, as third best in a field of 102, a bachelor of law degree. At the top of that year was Rehnquist, supreme court justice from 1971 and chief justice from 1986 until his death in 2005. The two students became close friends.Rehnquist’s progress was rather smoother than his classmate’s. Shortly after her graduation in 1952 she married her fellow student John Jay O’Connor and began a fruitless hunt for a legal position in California. As she commented later of the firms she approached, “none had ever hired a woman before as a lawyer and they were not prepared to do so”. The only offer she received was to work at one of the companies as a secretary.When her husband joined the US army legal service she accompanied him to Germany for three years and worked as a civilian lawyer for the Quartermaster Corps. The first of their three children was born shortly after their return to Arizona in 1957, and though O’Connor started a legal practice in Phoenix it did little business and she was mostly preoccupied with domestic life.She resumed her full-time career in 1965, serving as the state’s assistant attorney general for four years. When a seat in the Arizona state senate became vacant in the middle of its term, the state governor appointed O’Connor to fill it; she later took the seat as a Republican when it came up for election in 1972.With a reputation for hard work and a precise and concise mind, she was elected the chamber’s majority leader in 1973, the first woman to hold such a position in US history. Her voting record was of moderate conservatism, with occasional excursions into social activism on issues such as contraception and women’s legal rights. After two terms in the legislature, however, she decided there was a brighter future in the judicial branch of government.Under the system of voting for judges prevailing in many US states, she won election on the Republican ticket in 1975 to the county superior court, where she gained a reputation as a stern but fair judge, deeply concerned about prison conditions for those she sentenced. She also became more involved in politics at a national level, supporting Reagan’s candidacy against Gerald Ford in the 1976 presidential nomination battle.O’Connor was encouraged by some of Arizona’s leading Republicans to run for the governorship against the Democratic candidate, Bruce Babbitt, in the 1978 elections, but she refused. In what was widely seen as a move by Babbitt to neutralise a dangerous political rival, he appointed her to the Arizona court of appeals soon after he took office.In 1981, O’Connor was nominated as a supreme court judge. At her Senate confirmation hearing she laid out her philosophy of judicial restraint. Spelling out her commitment to the constitution’s separation of powers, she said: “Judges are not only not authorised to engage in executive or legislative functions, they are also ill-equipped to do so.” In the subsequent vote by the chamber she only missed unanimous confirmation because one of the 100 members was absent through illness.During her years in the court she became extremely popular among the staff as a humorous and approachable boss. She started an aerobics class for female employees, in which she was an enthusiastic participant, and became well known for the informality of the conferences she held with young lawyers, handing out popcorn while discussing cases.Largely under her influence, the court steered a firm, middle-of-the-road course through most of the contentious issues it had to confront. That was a solid achievement in itself. But her greater contribution was successfully to destroy the myth that women lacked judicial skills of the highest calibre. She cut a very large hole in the glass ceiling.O’Connor retired from the supreme court in 2006, after her husband developed Alzheimer’s disease; he died in 2009. She continued as an active public speaker, and was an advocate for civic education. In 2018 she announced that she had developed early stage Alzheimer’s herself and would no longer play a part in public affairs.She is survived by her sons, Scott, Brian and Jay, six grandchildren and her brother, Alan. Sandra Day O’Connor, jurist, born 26 March 1930; died 1 December 2023Harold Jackson died in 2021 More

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      ‘Bait and switch’: Liz Cheney book tears into Mike Johnson over pro-Trump January 6 brief

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      In a new book, the anti-Trump Republican Liz Cheney accuses the US House speaker, Mike Johnson, of dishonesty over both the authorship of a supreme court brief in support of Donald Trump’s attempt to overthrow the 2020 election and the document’s contents, saying Johnson duped his party with a “bait and switch”.“As I read the amicus brief – which was poorly written – it became clear Mike was being less than honest,” Cheney writes. “He was playing bait and switch, assuring members that the brief made no claims about specific allegations of [electoral] fraud when, in fact, it was full of such claims.”Cheney also says Johnson was neither the author of the brief nor a “constitutional law expert”, as he was “telling colleagues he was”. Pro-Trump lawyers actually wrote the document, Cheney writes.As Trump’s attempts to overturn his defeat by Joe Biden progressed towards the deadly January 6 attack on Congress, Cheney was a House Republican leader. Turning against Trump, she sat on the House January 6 committee and was ostracised by her party, losing her Wyoming seat last year.Her book, Oath and Honor: A Memoir and a Warning, will be published next week. The Guardian obtained a copy.Johnson became speaker last month, after McCarthy was ejected by the Trumpist far right, the first House speaker ever removed by his own party.On Tuesday, CNN ran excerpts from Cheney’s book, quoting her view that Johnson “appeared especially susceptible to flattery from Trump and aspired to being anywhere in Trump’s orbit”.CNN also reported that Cheney writes: “When I confronted him with the flaws in his legal arguments, Johnson would often concede, or say something to the effect of, ‘We just need to do this one last thing for Trump.’”But Cheney’s portrait of Johnson’s manoeuvres is more comprehensive and arguably considerably more damning.The case in which the amicus brief was filed saw Republican states led by Texas attempt to persuade the supreme court to side with Trump over his electoral fraud lies.It did not. As Cheney points out, even the two most rightwing justices, Samuel Alito and Clarence Thomas, who wanted to hear the case, said they would not have sided with the complainants.Cheney describes how Johnson, then Republican study committee chair, emailed GOP members on 9 December 2020 to say Trump had “specifically” asked him to request all Republicans in Congress “join on to our brief”.Johnson, Cheney says, insisted he was not trying to pressure people and simply wanted to show support for Trump, by “affirm[ing] for the court (and our constituents back home) our serious concerns with the integrity of our electoral system” and seeking “careful, timely review”.“Mike was seriously misleading our members,” Cheney writes. “The brief did assert as facts known to the amici many allegations of fraud and serious wrongdoing by officials in multiple states.”Johnson, she says, then told Republicans that 105 House members had expressed interest. “Not one of them had seen the brief,” Cheney writes. She also says he added “a new inaccurate claim”, that state officials had been “clearly shown” to have violated the constitution.“But virtually all those claims had already been heard by the courts and decided against Trump.”Calling the brief “poorly written”, Cheney says she doubted Johnson’s honesty and asked him who wrote it, as “to assert facts in a federal court without personal knowledge” would “present ethical questions for anyone who is a member of the bar”.The general counsel to McCarthy, then Republican minority leader, told Cheney that McCarthy would not sign the brief, while McCarthy’s chief of staff also called it “a bait and switch”. McCarthy told her he would not sign on. When the brief was filed, McCarthy had not signed it. But “less than 24 hours later, a revised version … bore the names of 20 additional members. Among them was Kevin McCarthy.“Mike Johnson blamed a ‘clerical error’ … [which] was also the rationale given to the supreme court for the revised filing. In fact, McCarthy had first chosen not to be on the brief, then changed his mind, likely because of pressure from Trump.”It took the court a few hours to reject the Texas suit. But the saga was not over. Trump continued to seek to overturn his defeat, culminating in the deadly attack on Congress on 6 January 2021 by supporters whom he told to “fight like hell”.Cheney takes other shots at Johnson. But in picking apart his role in the amicus brief, she strikes close to claims made for his legal abilities as he grasped the speaker’s gavel last month. Johnson “was telling our colleagues he was a constitutional law expert, while advocating positions that were constitutionally infirm”, Cheney writes.Citing conversations with other Republicans about Johnson’s “lawsuit gimmick” (as she says James Comer of Kentucky, now House oversight chair, called it), Cheney says she “ultimately learned” that Johnson did not write the brief.“A team of lawyers who were also apparently advising Trump had in fact drafted [it],” she writes. “Mike Johnson had left the impression that he was responsible for the brief, but he was just carrying Trump’s water.”The Guardian contacted Johnson for comment. Earlier, responding to CNN, a Trump spokesperson said Cheney’s book belonged “in the fiction section of the bookstore”.Cheney also considers the run-up to January 6 and the historic day itself. Before it, she writes, she and Johnson discussed mounting danger of serious unrest. He agreed, she says, but cited support for Trump among Republican voters as a reason not to abandon the president. Such support from Johnson and other senior Republicans, Cheney writes, allowed Trump to create a full-blown crisis.Two and a half years on, notwithstanding 91 criminal charges, 17 for election subversion, Trump is the clear frontrunner for the Republican presidential nomination. He polls close to or ahead of Biden.In certain circumstances, close elections can be thrown to the House – which Mike Johnson now controls. More

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      The US supreme court’s new ‘ethics code’ is an embarrassment | Moira Donegan

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      One of the unspoken rules of the US supreme court is that the justices will never admit that they were wrong, and no one else is allowed to admit it, either.Last week, in oral arguments in United States v Rahimi – which asks whether it is constitutional to take guns away from men who are subject to domestic violence restraining orders – the solicitor general, Elizabeth Prelogar, had to dance around this rule very delicately as she represented the federal government. The federal law disarming abusers had been thrown into question by a ludicrous and dangerous test for all gun restrictions that the supreme court instituted in its 2022 Bruen decision, one which makes it difficult to impose new gun laws if those laws aren’t sufficiently similar to ones on the books from either the revolutionary or civil war eras.It’s a ridiculous test, one that is self-evidently not workable. But Prelogar couldn’t say that; instead, she said that lower courts had simply misinterpreted the court’s perfect test, making mistakes of methodology; that the prospect that domestic abusers could be rearmed, leading to the murders of thousands of American women, was not a result of the court’s reckless, short-sighted and self-interested decision making, but a result of other people’s mistakes. She asked them not to clean up their mess, but to “clarify” their thinking.Something similar to Prelogar’s solicitous fiction about the justices’ infallibility was evident in the justices’ own missive, issued on Monday, declaring that the court would adopt a code of conduct. On the surface, this looked like a positive step. The supreme court has come under fire in recent months for its justices’ flagrant abuses of their station: their familiarity with billionaires who shower them with gifts and vacations; their lavish lifestyles and magically disappearing debts; their willingness to appear at fundraisers for political groups, and reluctance to recuse themselves from cases involving their family members, friends or financial interests.But none of this was a real problem, the justices assured us. These concerns, they claim in a statement accompanying their new code of conduct, were not legitimate, and certainly not the product of any actual mistakes or nefariousness on the justices’ part. Rather, they were merely the result of the failure of the silly, misinformed and stupid public to understand that the court, in its mighty wisdom, is already perfectly ethical.“The absence of a Code,” the justices wrote, “has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.” However did Americans get that impression?It is meaningful that the justices issued this code of conduct; it means that the public pressure on the court – which has been the subject of outrage and disgust since its 2022 Dobbs decision eliminating the constitutional right to an abortion, and which has subsequently come under increased scrutiny for its indifference to either the appearance or the reality of conflicts of interests – is working.The justices often make it clear that they read their own press, but they do not often deign to make any changes to their actual behavior, or to try to discipline their own institution. More often than not, they suggest that such gestures would be beneath them. Not so with the code of conduct, which signals that the justices admit that there is at least some obligation they have to the American people. As the legal commentator Chris Geidner put it, “They have acknowledged that the public rightfully has expectations that they will behave in an ethical way.” It’s better than nothing.But not much better. The new code of conduct, the justices assure us, is merely a formalization of guidelines to which they already adhered, a claim which on its own raises doubts about the code’s sufficiency. The code is based on a binding code of conduct that is applied to judges on the lower courts – but significantly weakened in its application to the supreme court justices.The commanding word “shall” that characterizes the lower courts’ code of conduct is softened throughout, in the supreme court version, to “should”. Prohibitions on corruption are dotted with exonerating qualifiers, like Swiss cheese. Where the lower courts’ code says judges shall not “lend the prestige of the judicial office to advance the private interests of the Justice or others” or “convey or permit others to convey that they are in a special position to influence the Justice”, the supreme court modifies this influence-peddling prohibition with a loophole big enough to drive Clarence Thomas’s RV through: the modifier “knowingly”.This kind of softening edit appears throughout the code: its strained language and convoluted application of exceptions seems like the product of vociferous intra-court infighting, or the lobbying of certain justices to ensure that their own questionable ongoing conduct can be excepted from the code. This might be the code’s one silver lining: its language seems evidence of chaos, disagreement and discord on the court, reminding us that even though we are stuck with this conservative supermajority, they are also stuck with each other.Even this weakened and exception-ridden code, it should be noted, has no enforcement mechanism. There is no way to investigate whether a justice has broken the code, no way to adjudicate the question of his or her wrongdoing, and no way to discipline him or her for any violation. The question of how to interpret the code, how to abide by it, and what to do in the event that it is broken is left entirely to the justices themselves – just like all their ethical questions were before.This response to questions about the court’s ethics with a defiant insistence that they will only ever police themselves is consistent with the way the justices have responded in the past. This is, after all, the same court that has refused to cooperate with congressional oversight of its own ethical misdeeds and appearance of corruption just this year, with the chief justice, John Roberts, issuing a contemptuous refusal to appear before the Senate judiciary committee in April. Justice Samuel Alito, meanwhile, opined to the Wall Street Journal this summer that Congress had no right to impose oversight or regulation on the court – that the justices and their power are immune from the principles of checks and balances.A belief that the court is its own sole and highest authority was also evident the last time the justices tried to explain away their own misconduct, when they issued a “Statement of Ethics Principles and Practices”. Like this code of conduct, that statement, published just this past April, also had no enforcement mechanism; like this one, it seemed more designed to quell public outrage about the court than to meaningfully circumscribe the justices’ behavior. No one fell for it that time, either.
      Moira Donegan is a Guardian US columnist More