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      ‘You want to think America is better’: can the supreme court be saved?

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      When Dawn Porter studied law at Georgetown University in Washington, she would pass the US supreme court every day. “You walk by the marble columns, the frontage which has inspirational words, and you believe that,” she recalls. “You think because of this court Black people integrated schools, because of this court women have the right to choose, because of this court, because of this court, because of this court.”Its profound role in American life is chronicled in Deadlocked: How America Shaped the Supreme Court, Porter’s four-part documentary series that traces the people, decisions and confirmation battles that have helped the court’s relationship with politics turn from a respectful dance into a toxic marriage.Porter, 57, an Emmy award winner who maintains her bar licence, remembers first year common law classes when she studied the court’s landmark decisions. “Like most lawyers I have a great admiration for not only what the court can do but its role in shaping American opinion as well as American society,” she says via Zoom from New York, a poster for her film John Lewis: Good Trouble behind her.“If there’s a criticism of the court in this series, it comes from a place of longing, a place of saying we can’t afford for this court to lose the respect of the American people. There’s going to be decisions over time that people disagree with. That’s not unusual. What’s unusual is how cases are getting to the court, how they’re ignoring precedent and the procedures by which the decisions are getting made. That’s where I would love people to focus.”Deadlocked offers a visual montage of the court winding back in time: women and people of colour gradually disappear in favour of an all-white, all-male bench. They include Chief Justice Earl Warren, who heralded an era of progressive legal decisions such as Brown v Board of Education, a unanimous 1954 ruling that desegregated public schools.Porter says of the paradox: “One of the things we were thinking is, isn’t it ironic that this all-male, all-white court is responsible for Brown v Board and for Roe v Wade [which enshrined the right to abortion] and you have the right to an attorney, which is Gideon v Wainwright, and you have the right to have your rights read to you. Yet when we have the most diverse court we’ve ever had, we’re seeing a rollback of some of these civil rights.”In 1967, President Lyndon Johnson nominated the civil rights lawyer Thurgood Marshall to be the first Black man to serve on the court. A group of southern senators, almost all Democrats, sought to exploit riots in the major cities and fears about crime to try to derail his nomination. Marshall endured five days of questioning spanning three weeks and was finally confirmed by the Senate in a 69-11 vote.There have only been two African American justices since: conservative Clarence Thomas and liberal Ketanji Brown Jackson. The first woman to sit on the court was Sandra Day O’Connor, a moderate conservative appointed by the Republican president Ronald Reagan.“It takes a century of supreme court jurisprudence before we get a woman on the court. There’s an irony there that we have the current composition of the court and yet we have probably one of the most least hospitable courts to individual rights.”The court’s relationship with public opinion has been complex, leading at some times, following at others. In 2015, it ruled that same-sex couples had the right to marry. The 5-4 decision removed same-sex marriage bans in 14 states – an acknowledgment of shifting attitudes and the rise of the LGBTQ+ rights movement.Porter observes: “The court doesn’t have an army. It doesn’t even have PR or a media representative. The supreme court can’t change public opinion but what the court can do is either set an aspirational goal or it can reflect where the country is. For the gay marriage decision, that’s where the country was. The country was supportive of same-sex marriage and the court ratifies that public opinion and makes it law.”Opinion polls show that a majority of Americans have also consistently supported reproductive rights. In Roe v Wade in 1973, the court voted 7-2 that the constitution protects individual privacy, including the right to abortion. Porter observes: “It’s not that controversial a decision by that time. More than half the states had reproductive rights access so it was only going to affect some of the states.”At the time, Christian evangelicals were not opposed to abortion rights. “Evangelicals historically were pro-choice. This is where politics comes in and is on this collision course with the judiciary. Evangelical leaders like Jerry Falwell realised, oh, wait, abortion is a wedge issue and there are all these Catholic voters. So they come together.“What the evangelicals want is tax exemption for religious schools. The Catholics don’t want abortion and together they’re a powerful voting bloc. They not only say we’re going to try and get the supreme court to change but we’re going to elect a president who is going to help us.”These religious groups duly turned against the Democratic president Jimmy Carter, an evangelical Sunday school teacher, in favour of the divorced former Hollywood actor Reagan. Porter continues: “What you see is kind of politics at work. How can we get power? How can we get what we want? How can we form alliances?“That alliance is very powerful because Reagan ends up having so many appointments to the court and you see the rightward shift of the court. These kinds of monumental changes don’t happen quickly but building blocks are constructed in these earlier years, like in the 80s, and they’ve continued to this day.”The court’s role as a political actor was never more stark than in 2000, when its ruling in Bush v Gore terminated the recount process in Florida in the presidential election, effectively handing the White House to George W Bush. Porter notes: “It’s 5-4 to step in and stop the voting to determine who would be the next president of the United States. Sandra Day O’Connor later said she regretted voting with the majority.“Also, interestingly, Justices John Roberts, Brett Kavanaugh and Amy Coney Barrett are all working with the Republicans on the side of soon-to-be President Bush. Is that illegal? No. Is it impermissible? No. Is it unethical? No. Is it interesting? Yes!” Porter says with a laugh.But the ever-growing politicisation of the court became turbocharged – perhaps irreversibly – by the death of the conservative justice Antonin Scalia in 2016. Mitch McConnell, then Republican majority leader in the Senate, committed a professional foul by refusing to act on President Barack Obama’s nomination of Merrick Garland to replace him, insisting that the seat remain vacant in an election year.Step forward Donald Trump, the Republican nominee for president who released a list of 11 potential supreme court nominees based on advice from conservative groups such as the Federalist Society and the Heritage Foundation. It was an unprecedented political masterstroke that comforted religious conservatives troubled by his unholy antics and past support for abortion rights.skip past newsletter promotionafter newsletter promotionMcConnell is seen in Deadlocked asserting that “the single biggest issue that brought nine out of 10 Republican voters home to Donald Trump … was the supreme court”. This clip is from an address he made in 2019 to the Federalist Society, which has played a critical role in tilting the court to the right.The group was founded in 1982 under the mentorship of Justice Antonin Scalia to challenge what conservatives perceived as liberal dominance of courts and law schools. Among its most prominent members was Leonard Leo, who oversaw the rise in its influence at the expense of the more liberal American Bar Association.Porter says: “Leonard Leo is one of the most fascinating and yet not widely known political actors in our contemporary history. The Federalist Society realises: we can have influence in grooming judges and who’s getting appointed to the lower courts. Leonard Leo takes that on steroids and eventually becomes the person who former president Trump looks to create his list of potential supreme court nominees.“In recent years Leo has secured a multibillion-dollar war chest in order to continue to groom and populate the lower courts with very conservative ideologues. Amy Coney Barrett is a product of that. Kavanaugh is a product of that. All the greatest hits are with Federalist Society influence.”Sheldon Whitehouse, a Democratic senator, has called it “the scheme”: a decades-long plot by rightwing donor interests to capture the supreme court and use it to accomplish goals that they cannot achieve through elected officials. The Federalist Society is a receptacle for “dark money” – millions of dollars in anonymous hidden spending.Porter adds: “The problem with private entities like the Federalist Society having so much influence and power is that there’s no insight into the source of their funds. We certainly do know that it’s not a coincidence that some of the interests of some of the most conservative folks seem to be being served by these appointments.”Last year the rightwing forces achieved their greatest victory with a decision that once seemed unthinkable: the overturning of Roe v Wade after nearly half a century. Most Republican-led states moved to restrict abortion with 14 banning the procedure in most cases at any point in pregnancy. About 25 million women of childbearing age now live in states where the law makes abortions harder to get than they were before the ruling.Porter had wanted to believe the court she admired as a student was a bulwark in defence of individual liberties. “Every pundit, every organisation, said Roe is going to be overturned and yet it was still hard to believe that 50 years later, when so many people rely on that decision, that it actually could be overturned.“I will say it really did personally impact my feeling about the court. Reading the decision, there’s ignoring of history. It’s not a well-written opinion, it’s not coherent, and that’s really hard. We all need to believe in things and we all need to believe that these are the smartest people and that they’re able to put aside their personal beliefs and that didn’t seem to be the case.“It was more than disappointing. It’s somewhat comforting that we have such a strong reaction to it but I see the cases of the women who have been so harmed by this decision. There are people have been forced to carry pregnancies to term that were not viable, people who just stay pregnant who didn’t want to be pregnant. You want to think America is better than that.”As the final episode of Deadlocked acknowledges, the court faces a crisis of legitimacy. A series of extremist rulings out of whack with public opinion have come at the same time as ethics scandals involving the rightwing justices Thomas and Samuel Alito. The share of Americans with a favourable opinion of the court has declined to its lowest point in public opinion surveys since 1987: 44% favourable versus 54% unfavourable, according to the Pew Research Center.Porter adds: “Every single person we spoke to for this series regardless of their political background – and we have Scalia’s former clerk, who wrote the decision broadening access to guns; we have Ted Olson, who argued Bush v Gore for President Bush; we have Don Ayer, who was a Reagan justice department official – is concerned about the reputation of the court and what the future holds if the court continues to chart its own path and not realise the delicate balance of our tripartite system of government.“What if the court sides with a Trump who refuses to accept the results of the election next year? That’s what we’re talking about and a lot of the people who did the insurrection are still out there; we didn’t arrest them all. We’re in uncharted waters. It’s not a game and I don’t think anyone wants to actually put this to the test of: will our democracy survive?”
      Deadlocked: How America Shaped the Supreme Court premieres on Showtime on 22 September with a UK date to be announced More

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      US federal judge rules revised Daca policy illegal and halts new applications

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      A federal judge on Wednesday declared illegal a revised version of a federal policy that prevents the deportation of hundreds of thousands of immigrants brought to the US as children.US district judge Andrew Hanen agreed with Texas and eight other states suing to stop the Deferred Action for Childhood Arrivals (Daca) program. The judge’s ruling was ultimately expected to be appealed to the US supreme court, sending the program’s fate before the high court for a third time.“While sympathetic to the predicament of DACA recipients and their families, this Court has expressed its concerns about the legality of the program for some time,” Hanen wrote in his 40-page ruling. “The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, has decided not to pass DACA-like legislation … The Executive Branch cannot usurp the power bestowed on Congress by the Constitution – even to fill a void.”Hanen barred the government from approving any new applications, but left the program intact for existing recipients during the expected appeals process. Hanen said his order does not require the federal government to take any actions against Daca recipients.Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, which is representing Daca recipients in the lawsuit, said it will ultimately be up to higher courts, including the supreme court, to rule on Daca’s legality and whether Texas proved it had been harmed by the program.“Judge Hanen has consistently erred in resolving both of these issues, and today’s ruling is more of the same flawed analysis. We look forward to continuing to defend the lawful and much-needed Daca program on review in higher courts,” Saenz said.The Texas attorney general’s office, which represented the states in the lawsuit, and the US Department of Justice, which represented the federal government, didn’t immediately return emails or calls seeking comment.The states have argued the Obama administration didn’t have the authority to first create the program in 2012 because it circumvented Congress.In 2021, Hanen had declared the program illegal, ruling it had not been subject to public notice and comment periods required under the federal Administrative Procedures Act.The Biden administration tried to satisfy Hanen’s concerns with a new version of Daca that took effect in October 2022 and was subject to public comments as part of a formal rule-making process.But Hanen, who was appointed by then-President George W Bush in 2002, ruled the updated version of Daca was still illegal. He had previously said Daca was unconstitutional and it would be up to Congress to enact legislation shielding people under the program, often known as “Dreamers”.Hanen also had previously ruled the states had standing to file their lawsuit because they had been harmed by the program.The states have claimed they incur hundreds of millions of dollars in health care, education and other costs when immigrants are allowed to remain in the country illegally. The states that sued are Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi.Those defending the program – the federal government, the Mexican American Legal Defense and Educational Fund and the state of New Jersey – had argued the states failed to present evidence that any of the costs they allege they have incurred have been tied to Daca recipients. They also argued Congress has given the Department of Homeland Security the legal authority to set immigration enforcement policies.skip past newsletter promotionafter newsletter promotionDespite previously declaring the Daca program illegal, Hanen had left the Obama-era program intact for those already benefiting from it. But he had ruled there could be no new applicants while appeals were pending.There were 578,680 people enrolled in Daca at the end of March, according to US Citizenship and Immigration Services.The program has faced a roller coaster of court challenges over the years.In 2016, the supreme court deadlocked 4-4 over an expanded Daca and a version of the program for parents of Daca recipients. In 2020, the high court ruled 5-4 that the Trump administration improperly ended Daca, allowing it to stay in place.In 2022, the 5th US circuit court of appeals in New Orleans upheld Hanen’s earlier ruling declaring Daca illegal, but sent the case back to him to review changes made to the program by the Biden administration.President Joe Biden and advocacy groups have called on Congress to pass permanent protections for “dreamers”. Congress has failed multiple times to pass proposals called the Dream Act to protect Daca recipients. More

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      Christine Blasey Ford to release memoir detailing Kavanaugh testimony

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      Christine Blasey Ford, the psychology professor who accused Brett Kavanaugh of sexual assault, pitching the then conservative US supreme court nominee into huge controversy, will release a memoir next year that she sees as a call for people to speak out about wrongdoing.Publisher St Martin’s Press said Ford’s book would share “riveting new details about the lead-up” to her Senate testimony and “its overwhelming aftermath”, including receiving death threats and being unable to live in her home.The publisher also said Ford would discuss “how people unknown to her around the world restored her faith in humanity”. The book, to be called One Way Back, will be published in March.In a statement, Ford said: “I never thought of myself as a survivor, a whistleblower, or an activist before the events in 2018.“But now, what I and this book can offer is a call to all the other people who might not have chosen those roles for themselves, but who choose to do what’s right. Sometimes you don’t speak out because you are a natural disrupter. You do it to cause a ripple that might one day become a wave.”Kavanaugh, a former Republican operative, was the second of Donald Trump’s three nominees to the supreme court, tilting the court decisively in favor of conservatives and leading to rightwing rulings including the removal of the right to abortion.Ford is a professor at Palo Alto University and Stanford University School of Medicine.In September 2018, she told the Senate judiciary committee Kavanuagh sexually assaulted her at a high-school party in the 1980s.He pinned her on a bed, she said, pressing his hand over her mouth while trying to remove her clothes.In prepared testimony, Ford said: “I believed he was going to rape me. I tried to yell for help … I thought Brett was accidentally going to kill me.”Ford escaped when a friend of Kavanaugh jumped on the bed, she said, famously telling senators: “Indelible in the hippocampus is the laughter. The uproarious laughter between the two. They’re having fun at my expense.”The assault, Ford said, “drastically altered my life. For a very long time, I was too afraid and ashamed to tell anyone the details”. She told “very few friends” and her husband, she added.Kavanaugh angrily denied the accusation, and others about alleged drunken behaviour which roiled confirmation proceedings in a way not seen since the scandal over Clarence Thomas’s alleged sexual harassment of Anita Hill, in 1991.Backed by Republicans on the committee vociferously including the then chair, Lindsey Graham of South Carolina, Kavanaugh was confirmed to the court by 50 votes to 48. Only one Republican, Lisa Murkowski of Alaska, declined to support him. More

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      Ginni Thomas and rightwing activists exploited supreme court ruling – report

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      In the months before the US supreme court handed down Citizens United, the 2010 ruling which unleashed a flood of dark money into American politics, the wife of a conservative justice worked with a prominent rightwing activist and a mega-donor closely linked to her husband to form a group to exploit the decision.So said a blockbuster report from Politico, detailing moves by Ginni Thomas – wife of Justice Clarence Thomas – and Leonard Leo, the Federalist Society chief who has worked to stock the court with rightwingers, leading to a series of epochal decisions, including the removal of the federal right to abortion.Half a million dollars in seed money, Politico said, came from Harlan Crow, the Nazi memorabilia-collecting billionaire whose extensive and mostly undeclared gifts to Clarence Thomas have fueled a spiraling supreme court ethics scandal.Sheldon Whitehouse, a Democratic senator from Rhode Island and champion of ethics reform, said the report laid out “the creepy intermingling of dark billionaire money, phoney front groups, far-right extremists and the United States supreme court”.Politico noted that the ruling in Citizens United was widely expected after justices “took the unusual step of asking for re-arguments based on a sweeping question – whether they should overrule prior decisions approving laws that limited spending on political campaigns”.Noting that conservative groups moved to capitalise faster than others, the site quoted an anonymous source as saying Ginni Thomas “really wanted to build an organisation and be a movement leader. Leonard was going to be the conduit of that.”It also published a timeline of Thomas and Leo’s moves.A nonprofit, Liberty Central, was incorporated with $500,000 from Crow on 31 December 2009, three and a half months after the close of oral arguments in Citizens United.The Citizens United decision was handed down on 21 January 2010, with Clarence Thomas objecting to disclosure rules.On 18 February 2010, Ginni Thomas told the Conservative Political Action Conference (CPAC) she had been “called to the frontlines”.Ginni Thomas’s work on the hard right of US politics has already contributed to controversy surrounding her husband, not least through her support for Donald Trump’s attempt to overturn the 2020 election and Clarence Thomas’s refusal to recuse himself when investigations reached the supreme court.Politico also noted how a Leo-linked group, the Judicial Education Project, paid Ginni Thomas up to $100,000 before transforming into a generator of amicus briefs to the court and becoming involved in the push to overturn Trump’s defeat as he sought a second term as president in 2020.Connections between Leo and Ginni Thomas have made headlines before. The Washington Post reported how, in January 2012, Leo told the political strategist Kellyanne Conway – later White House counselor to Trump – to direct money to Ginni Thomas while urging: “No mention of Ginni, of course.”Politico also noted that Ginni Thomas’s current entity, Liberty Consulting, is “a focus of interest from congressional committees”, with Senate Democrats demanding “Leo and Crow provide a list of ‘gifts, payments, or other items of value’ they’ve given Thomas and her husband”.skip past newsletter promotionafter newsletter promotionClarence Thomas has said he did not declare gifts from Crow, including holidays, travel, school fees and a property purchase, because he was advised he did not have to. Crow has said he did not discuss politics or business before the court with his friend.Leo and Crow have resisted congressional disclosure demands. The chief justice, John Roberts, has rebuffed requests to testify about ethics matters. Supreme court justices are nominally subject to the same ethics regulations as all federal judges but in practice govern themselves. Senate Democrats have advanced supreme court ethics reform but it has next to no chance of passing, given Republican opposition.Leo, Crow and Ginni Thomas did not comment to Politico. Lawyers for Leo have complained of harassment by Congress and dismissed a reported investigation of his work by the attorney general of Washington DC as politically biased.Receiving business and funds from groups connected to Leo would be legal if Ginni Thomas provided services commensurate with such payments. Laura Solomon, a tax attorney for charitable groups and donors, told Politico: “The real question then is, ‘What is Ginni Thomas qualified to do, what did they pay her to do, and was it fair market value?’”Politico’s report made a splash among court watchers.Norman Ornstein, emeritus scholar at the American Enterprise Institute, said: “This stinks to high heaven. We need the Internal Revenue Service and the justice department to investigate. It looks like tax offenses, criminal ones, not to mention the sheer corruption. Leonard Leo and Ginni Thomas are despicable.”The New Yorker reporter Jane Mayer – co-author of Strange Justice, a biography of Clarence Thomas, and author of Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right – simply posted a fire emoji. More

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      Pressure grows on Clarence Thomas after more gifts from rightwing donor

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      The conservative supreme court justice Clarence Thomas faced further controversy on Thursday after the release of his financial disclosure form for 2022 provided evidence of more flights and stays with Harlan Crow, a Republican mega-donor.Sheldon Whitehouse, a Democratic senator from Rhode Island and judiciary committee member, called the form a “late-come effort at ‘clean-up on aisle three’” which would not “deter us from fully investigating the massive, secret, rightwing billionaire influence in which this court is enmired”.A series of bombshell reports have detailed long relationships between Thomas, rich donors and influential rightwing figures. In the case of Crow, a real-estate baron and collector of Nazi memorabilia, ProPublica has reported gifts of luxury travel and resort stays, a property purchase involving Thomas’s mother and school fees paid for his great-nephew.Thomas is the senior conservative on a court dominated 6-3 by the right, a majority that has handed down epochal rulings including Dobbs v Jackson, which removed the right to abortion.From the left, calls for Thomas to resign or be impeached have proliferated. In the Senate, Democrats have advanced supreme court ethics reform. Given that Republicans have sufficient votes to prevent all such actions – and that the chief justice, John Roberts, has rebuffed calls to testify – chances of change seem slim.Thomas, 75, has denied wrongdoing, saying he was advised he did not need to disclose trips and gifts from rich donors as they were “hospitality from close personal friends”.His 2022 disclosure form was released on the last day of August after he – and another conservative beset by reporting about donor relationships, Samuel Alito – requested 90-day extensions to the usual deadline. In an unusual move, Thomas’s form included a lengthy defence of previous filings.In one striking contention, the justice claimed protests over the Dobbs decision, after it leaked in May 2022, justified his use of Crow’s private plane for a trip to Texas to speak at a rightwing conference.“Because of the increased security risk following the Dobbs opinion leak,” the form said, “the May flights were by private plane for official travel as filer’s security detail recommended noncommercial travel whenever possible.”Thomas’s lawyer, Elliot S Berke, said the justice had “always strived for full transparency and adherence to the law, including with respect to what personal travel needed to be reported”.Berke also criticised “ethics complaints filed against Justice Thomas by leftwing organisations … diametrically opposed to his judicial philosophy” and “leftwing ‘watchdog’ groups … attacking Justice Thomas for alleged ethical violations stemming from his relationships with personal friends who happen to be wealthy”.In his own statement, Kyle Herrig, senior adviser to the watchdog Accountable.US, said: “It’s no surprise that Justice Thomas has kept up his decades-long cozy relationship with billionaire benefactor Harlan Crow with even more lavish jet rides and vacation reimbursements.“For years, Thomas has used his position on our nation’s highest court as a way to upgrade his own lifestyle – and that hasn’t stopped.“… Harlan Crow, Justice Thomas, Leonard Leo, and other key players … may believe they exist above the law, but they don’t. We need accountability and reform now.”Another court observer, Gabe Roth of Fix the Court, addressed the unusual statement appended to Thomas’s declarations form.“Justice Thomas’s lengthy explanation as to why he omitted various gifts and free trips on previous disclosures does not countermand his decades of willful obfuscation when it comes to his reporting requirements,” Roth said.“What’s more, he’s chosen not to update earlier reports with details about the tuition gift, the RV loan” – from Anthony Welters, a healthcare magnate, and first reported by the New York Times – “or his countless private plane fights, all of which were reportable.“It’s time for the Judicial Conference, as required by the disclosure law, to refer these issues to the [US] justice department for further investigation.” More

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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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      AOC leads call for federal ethics investigation into Clarence Thomas

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      Five House Democrats led by Alexandria Ocasio-Cortez of New York wrote to the US attorney general, Merrick Garland, to demand a federal investigation of the conservative supreme court justice Clarence Thomas, over his acceptance of undeclared gifts from billionaire rightwing donors.“We write to urge the Department of Justice to launch an investigation into … Clarence Thomas for consistently failing to report significant gifts he received from Harlan Crow and other billionaires for nearly two decades in defiance of his duty under federal law,” the Democrats said.As well as Ocasio-Cortez, a progressive popularly known as AOC, the letter was signed by Jerrold Nadler of New York, the ranking Democrat on the House judiciary committee; Jamie Raskin of Maryland, a professor of constitutional law; Ted Lieu of California; and Hank Johnson of Georgia.This week saw publication of a bombshell ProPublica report which said Thomas had taken 38 undeclared vacations funded by billionaires and accepted gifts including expensive sports tickets.The report followed extensive reporting by ProPublica and other outlets including the New York Times regarding Thomas’s close and financially beneficial relationships with Crow, a real-estate magnate, and other influential businessmen.Thomas, 75, denies wrongdoing, claiming never to have discussed with his benefactors politics or business before the court. He has said he did not declare those benefactors’ gifts, over many years, because he was wrongly advised.Ethics experts say that Thomas broke federal law by failing to declare such largesse.Supreme court justices are nominally subject to the same ethics rules as all federal justices but in practice govern themselves.The chief justice, John Roberts, has rebuffed requests for testimony in Congress. Democrats on the Senate judiciary committee have advanced supreme court ethics reform but it will almost certainly fail, in the face of Republican opposition.Calls for Thomas to resign or be impeached and removed have proliferated but are also almost certain to fail. Confirmed in 1991, Thomas is the most senior of six conservatives on a nine-member court tipped dramatically right by three justices installed during the presidency of Donald Trump.In their letter to Garland on Friday, Ocasio-Cortez and her fellow Democrats noted that Thomas’s wife, Ginni Thomas, is “a far-right activist who often champions conservative causes that come before the court”.They were addressing, they said, “a matter of critical importance to the integrity of our justice system”.Outlining reporting about Thomas, the representatives said his “consistent failure to disclose gifts and benefits from industry magnates and wealthy, politically active executives highlights a blatant disregard for judicial ethics as well as apparent legal violations.“No individual, regardless of their position or stature, should be exempt from legal scrutiny for lawbreaking … as a supreme court justice and high constitutional officer, Justice Thomas should be held to the highest standard, not the lowest and he certainly shouldn’t be allowed to violate federal law.”Refusing to hold Thomas accountable, the Democrats said, “would set a dangerous precedent, undermining public trust in our institutions and raising legitimate questions about the equal application of laws in our nation.“The Department of Justice must undertake a thorough investigation into the reported conduct to ensure that it cannot happen again.” More

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      ‘Affirmative action for the privileged’: why Democrats are fighting legacy admissions

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      In the aftermath of the supreme court’s decision to strike down race-conscious admissions at universities in June, progressive Democrats have turned their outrage into motivation. They are now using their fury to power an impassioned campaign against a different admissions practice that they consider unjust and outdated: legacy admissions.The century-old practice gives an advantage to the family members of universities’ alumni, a group that tends to be whiter and wealthier than the general pool of college applicants. Critics argue that legacy applicants already enjoy an unfair leg up in the admissions process and that university’s preference toward those students exacerbates existing inequalities in higher education.As the country adapts to a post-affirmative action world, progressives are ramping up the political and legal pressure on universities to scrap their use of legacy admissions. A Democratic bill, introduced by Senator Jeff Merkley of Oregon and Congressman Jamaal Bowman of New York, and a civil rights inquiry at the Department of Education could represent a serious threat to legacy admissions.“Though the supreme court gutted race-conscious college admissions, make no mistake, affirmative action is still alive and well for children of alumni and major donors, and taxpayers shouldn’t be funding it,” Merkley told the Guardian.The origins of legacy admissions policies date back to the 1920s, when Jewish and immigrant students began attending America’s elite universities in larger numbers. Concerned over this growing trend, college leaders implemented a range of admissions preferences, such as legacy status, designed to benefit the white Protestant applicants who had populated university classrooms for centuries.Despite the ignominious roots of legacy admissions, the practice persists at many of the country’s most prestigious universities, including every member of the Ivy League. Colleges defend the practice as beneficial for building strong alumni communities across generations and encouraging financial contributions, even though one analysis found “no statistically significant evidence that legacy preferences impact total alumni giving”.Progressives have mocked legacy admissions as “affirmative action for the privileged”, and the supreme court’s decision against race-conscious admissions has reinvigorated their efforts to end the widely unpopular practice altogether. According to one Pew Research Center survey conducted last year found, 75% of Americans believe alumni relations should not be considered in the admissions process.“Many of the legacy kids simply would not have gotten in had they not had legacy [preference],” said Rashad Robinson, president of the racial justice group Color of Change. “This is the result of a system that was designed to operate exactly the way it’s operating.”Last month, Merkley and Bowman reintroduced their bill, the Fair College Admissions for Students Act, to prohibit universities participating in federal student aid programs from giving an admissions advantage to the relatives of alumni or donors. Noting the financial advantages legacy students often enjoy in the college admissions process, Merkley suggested those applicants do not require additional assistance to gain entry to elite universities.“As the first in my family to go to college, I know the struggles facing students whose parents have never been through the process,” Merkley said.According to an analysis conducted by the Harvard research group Opportunity Insights, legacy students were only slightly more qualified than the average applicant to elite private colleges, but were nearly four times more likely to be admitted than those with the same test scores. The boost appears to disproportionately harm students of color, as one study found that white students account for 40% of Harvard’s total applicant pool but nearly 70% of the university’s legacy applicants. Opportunity Insights’ research also concluded that legacy applicants are more likely to come from wealthy families, giving them more access to resources like private education and preparation courses for standardized tests.“Children of donors and alumni may be excellent students, but they are the last people who should get reserved seats, enabling them to gain admission over more qualified students from more challenging backgrounds,” Merkley said.The battle over legacy admissions has now also attracted the attention of the Department of Education. Last month, the department opened a civil rights investigation into Harvard’s use of legacy admissions following a complaint filed by the group Lawyers for Civil Rights on behalf of three racial justice organizations. The complaint accused Harvard of violating Title VI of the Civil Rights Act of 1964 by giving an admissions edge to the children of donors and wealthy alumni.“We know that schools like [Harvard] set students up for success – and for great success – and introduce them to new innovative ideas and a great network,” said Michael Kippins, a litigation fellow with Lawyers for Civil Rights. “They should reflect the type of diversity that we see in our communities the same way that we would want fair access for anything else.”Olatunde Johnson, a professor at Columbia Law School, viewed lawsuits against colleges’ legacy admissions policies as somewhat inevitable after the supreme court’s decision on affirmative action.“The supreme court opened the door to that challenge by leaving legacy and donor preferences untouched while it got rid of race-conscious affirmative action, so it made it kind of an easy target,” Johnson said.skip past newsletter promotionafter newsletter promotionShe predicted other universities would be closely watching the outcome of the civil rights inquiry into Harvard as they reconsider their own legacy admissions policies.“People might wait to see how this challenge is resolved because some of the broad contours of this complaint are going to mirror what people would do in future cases,” Johnson said. “Whatever kind of ruling there is, it’s going to have implications more broadly for other institutions, even without separate complaints or lawsuits.”Some colleges aren’t waiting on the federal government to make the change. The liberal arts college Wesleyan University announced last month that it would scrap its legacy admissions policy, joining other private institutions like Amherst College and Johns Hopkins University. The practice is already prohibited at a number of public colleges, including all schools in the University of California and the California State University systems.The trend of abandoning legacy admissions policies may accelerate in the face of mounting criticism from political leaders, including some Republicans. After the supreme court’s decision in June, South Carolina senator and Republican presidential candidate Tim Scott praised the ruling and simultaneously suggested universities needed to revisit their legacy preferences.“I think the question is, how do you continue to create a culture where education is the goal for every single part of our community?” Scott told Fox News. “One of the things that Harvard could do to make that even better is to eliminate any legacy programs.”Robinson is somewhat skeptical that a bipartisan coalition will materialize to meaningfully challenge legacy admissions, and the Republicans in control of the House have so far shown little appetite to take up Merkley and Bowman’s bill.But even if legacy preferences do come to an end, Robinson believes much more will need to be done to build a truly just college admissions process. After all, he said, the practice of legacy admissions is only one piece of a much broader system that disadvantages students of color.“Racism is like water pouring over a floor with holes in it. It will always find the cracks. So, yes, we should deal with legacy admissions. But I want to make sure that we don’t think that this is some sort of silver bullet,” Robinson said.“We shouldn’t fool ourselves into thinking that those who are working every day to shut the doors of opportunity and access to those who have been excluded are not going to find other ways to to hold the side door open for people who look like them.” More