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      In a more just world, this would be the 50th anniversary of Roe v Wade | Moira Donegan

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      In a more just world, this would be the 50th anniversary of Roe v WadeMoira DoneganUntil last year, Roe made it more possible for women’s lives to be determined by their choices, not merely by their bodies If the supreme court hadn’t overturned it last June, undoing a longstanding precedent and inflicting untold harm to women’s well-being and dignity, Sunday 22 January would have been the fiftieth anniversary of Roe v Wade.Over those 50 years, Roe changed American life dramatically. Abortion became a routine part of life, a resource people planned their lives around having. In contrast to its political controversy, abortion in the Roe era was – as it is now – aggressively common. Approximately one in four American women will have an abortion at some point in the course of their reproductive lives.The figure lends credence to the pro-choice assertion that everyone loves someone who had an abortion – and the accompanying quip that if you think you don’t know a woman who has had an abortion, you really just don’t know any women who trust you enough to tell you. But part of the legacy of Roe is not just that these women you know and love have been able to have freer, healthier, more volitional lives, but also that their abortions, for many of them, are not worth confessing. For most, abortions were not tragedies to be whispered about, or life-altering moments of shame, but banalities, choices to which they were unquestionably entitled, and from which they could move unconflictedly on. But Roe is gone. Now, for many women, these choices are crimes.It’s worth reflecting on what we had during those 49 years. While it stood, Roe offered a promise: that women’s lives need not be circumscribed by so-called “biological destiny”; that gender – its relations, performances, and obligations – might not be something that is imposed on women, but something that they take up and discard on their own terms. In the Roe era, this frank entitlement by women to determine the courses of their own lives was the decision’s greatest legacy. Individual women’s distinction and determination, or their conflictedness and confusion, or their ambivalence and exploration: once, before Roe, these parts of a woman’s personality almost didn’t matter; they were incidental eccentricities along the inevitable road to motherhood. Roe made it more possible for women’s lives to be determined by their characters, not merely by their bodies.It is easy to speak of Roe’s impact in material terms – the way it enabled women’s long march into paid work and into better paid work, how it was a precondition for their soaring achievements in education and the professions, their ascents into positions of power and influence. So little of the vast and varied lives of twentieth-century American women could have been achieved in the absence of abortion or birth control – these women, their minds and careers, are gifts the nation could never have received if they’d been made to be pregnant against their wills, or made to care for unplanned, unlonged-for babies.But it is less easy to discuss the sense of dignity that Roe gave to American women, the way that the freedom to control when and whether they would have children endowed American women, for the first time, with something like the gravitas of adults. Roe opened a door for women into dignity, into self-determination, into the still wild and incendiary idea that they, like men, might be endowed with the prerogatives of citizenship, and entitled to chart the course of their own lives.This, at least, was the aspiration that Roe came to stand for: women’s freedom, their independence, their acceptance as equals in the American project. Of course, it never quite did work out that way: the Hyde amendment, which banned Medicaid funding for abortions, was passed just three years after Roe, in 1976, and effectively excluded poor women from Roe’s promise. Black women faced the dual barriers of moral judgement and eugenicist legacy – for them, often neither the choice to abort nor the choice to parent were fully free. Members of the anti-choice movement, assisted by a judiciary that became increasingly willing to do their bidding, were inventive and sadistically persistent in chipping away at abortion access, making it more expensive, more onerous, and more stigmatized than other kinds of medical care.Even in robustly liberal states, where support for abortion was high and restrictions were few, walking into a clinic still felt like doing something illegal – there was the gauntlet of protestors outside, the receptionists seated behind bulletproof glass. If Roe was supposed to make women equals, why were they made so unequal when they tried to access its protections?Maybe part of the answer is that Roe’s authors never intended the decision to take on the symbolic value that it did. Justice Harry Blackmun’s 1973 opinion famously treats abortion legality as a matter of the rights of doctors, a reasoning that derived from his own respect for medical professionalization, and a legal theory, en vogue at the time, that found privacy protections in the 14th amendment. Like many of his successors on the bench, Blackmun adopted pretensions to medical and moral expertise when confronted with abortion cases that he did not in fact possess. Largely absent from his reasoning were women’s claims to liberty and equality. For the court, for decades, women’s self-determination was largely an afterthought.It was the women’s movement – feminists and pro-choice activists – that transformed Roe into a symbol of women’s aspiration to equality; it was the abortion patients, hundreds of thousands of them, who embodied Roe’s promise when they lived lives they chose for themselves.It was this symbol that the anti-choice movement attacked, and this aspiration that the supreme court, in its ruling overruling Roe, cut down. For 49 years, Roe dignified American women; it outlawed the abortion ban, one of the most egregious attempts to dominate us by force, and it endowed us with the trust and respect of physical freedom. While it lasted, the abortion right was a promise: that the state would not commandeer our insides, could not turn our own bodies against us in order to thwart our desires. This was what the court imposed when it struck down Roe. One day, self-determination, liberty, and autonomy were women’s constitutional right. The next day, women were reduced – in their status, in their citizenship, and in their safety.We still haven’t seen the full extent of what the overturning of Roe will take from us. We haven’t yet seen women’s numbers diminish in public life; we still haven’t grasped the human cost of the lost dreams, the damaged health, the foregone curiosity. Maybe part of the inability to mourn is related to how much we took for granted in the Roe era. As a nation, we became so accustomed to women’s reproductive freedom that we didn’t realize the extent of what it gave to us. We will miss it now that it is gone.
      Moira Donegan is a Guardian US columnist
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      Roe v Wade: US women win abortion rights – archive, January 1973

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      Roe v Wade: US women win abortion rights – archive, 197323 January 1973: The supreme court rules that a woman has a near-absolute right to an abortion, but only in the first three months of her pregnancy Washington, 22 JanuaryIn a long awaited decision the United States supreme court ruled today that a woman has a near-absolute right to an abortion, but only in the first three months of her pregnancy. During the later stages the State has an increasing power of intervention, the court ruled by a seven to two majority; and during the last trimester can refuse to allow the operation.The decision, which came today as part of a lengthy ruling which declared the Texas and Georgia anti-abortion laws unconstitutional, has been generally welcomed by liberal groups here. Mrs Lee Giddings, of the National Association for the Repeal of Abortion Laws, said today she was “absolutely thrilled.”US supreme court overturns abortion rights, upending Roe v WadeRead moreBut one of the two dissenting supreme court justices, the Nixon appointee Justice Byron White (the other dissenting justice was also a Nixon appointee, Mr William Rehnquist), later criticised the verdict as “improvident, extravagant, and an exercise of raw judicial power.”In his ruling, Justice Harry Blackmun said that during the first three months of a pregnancy “the abortion decision and its effectuation must be left to the medical judgment of the woman’s doctor.” After that, the State “In promoting its interest in the mother’s health” may regulate the abortion procedure by among other things, making laws, regulating the doctor’s terms of reference.Only in the third three-month period, when a foetus could presumably live, if there was a premature birth, can the State “regulate or even forbid abortion.” The justices ruled the State could intervene thus “where it was necessary, in appropriate medical judgment, for the preservation of life or the health of the mother.”The one dissenting voice raised today at the supreme court ruling came from the Women’s National Abortion Action Committee, which condemned the “artificial and arbitrary” time limits imposed by judges. A spokesperson, as they say here, says that “a woman should always have an absolute right to determine what happens to her own body.” Harsh reaction is also expected, of course, from the Roman Catholic church and other anti-abortion lobby groups.This is an edited extract. Read the article in full.TopicsAbortionFrom the Guardian archiveRoe v WadeUS supreme courtReproductive rightsLaw (US)WomenUS politicsnewsReuse this content More

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      Democratic chair of Senate intelligence panel seeks briefing on Biden documents – as it happened

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      Mark Warner, the Democratic chair of the Senate intelligence committee, has requested a briefing on the classified documents found at Joe Biden’s former office, as well as the government secrets the FBI discovered last year at Donald Trump’s Mar-a-Lago resort.“Our system of classification exists in order to protect our most important national security secrets, and we expect to be briefed on what happened both at Mar-a-Lago and at the Biden office as part of our constitutional oversight obligations,” Warner said in a statement. “From what we know so far, the latter is about finding documents with markings, and turning them over, which is certainly different from a months-long effort to retain material actively being sought by the government. But again, that’s why we need to be briefed.”House Republicans geared up to launch investigations and tried to make the most of reports that classified documents dating to his time as vice-president were found in an office used by Joe Biden. But unlike with the government secrets the FBI found at Donald Trump’s Mar-a-Lago resort, it didn’t take a search warrant for Biden to turn over the material – he had it done so immediately, which Democrats are citing to defend the president.Here’s what else went on today:
      The Democratic Senate intelligence chair requested a briefing on both Biden’s classified documents, and the government secrets found at Mar-a-Lago.
      House Democrat Katie Porter announced a run for the California Senate seat up for election in 2024, but its current occupant, Dianne Feinstein, gave no indication she’d be stepping down. Meanwhile, Porter’s recently defeated Republican opponent announced plans to run for her seat again.
      The House GOP made clear it wants spending cuts in exchange for raising the debt ceiling, which will be necessary later this year.
      George Santos may be an admitted fabulist, but a top House Republican had little to say about whether the party would discipline him for his lies. Also today, two Democrats hand-delivered an ethics complaint to his office.
      A Texas House Republican filed impeachment articles against homeland security secretary Alejandro Mayorkas. It remains to be seen if the chamber’s leadership will go through with trying to remove him over his handling of the southern border.
      Katie Porter only narrowly won re-election to her southern California House district last year, and after she today announced plans to run for Senate in 2024, her former opponent declared a new campaign to take her seat.Republican Scott Baugh, who lost with 48.4% of the vote to Democrat Porter’s 51.6% in the 2022 election, said he would run again next year:Voters are rightfully upset with the dysfunction in Washington and deserve better. I am ready to go to work to restore thoughtful, conservative representation to our part of Orange County. That’s why I’m running for #CA47 in 2024.— Scott Baugh (@ScottBaughCA47) January 10, 2023
      Porter represents California’s 47th district centered on Orange county, a former Republican stronghold that has become more liberal in recent elections. The Cook Political Report’s partisan voting index rates it D+3, indicating a slight tilt towards the Democrats.The Trump Organization’s former finance chief has been sentenced to five months in prison after pleading guilty to tax crimes and cooperating with prosecutors in their successful case against Donald Trump’s business:After testimony that helped convict Donald Trump’s company of tax fraud, its longtime senior executive Allen Weisselberg has been given five months in jail for accepting $1.7m in job perks without paying tax.Weisselberg, 75, was promised that sentence in August when he agreed to plead guilty to 15 tax crimes and testify against the Trump Organization, where he has worked since the mid-1980s and, until his arrest, had served as chief financial officer.He was handcuffed and taken into custody moments after the sentence was announced.Weisselberg will likely be locked up at Rikers Island in New York and eligible for release after slightly more than three months.As part of the plea agreement, Judge Juan Manuel Merchan also ordered Weisselberg to pay nearly $2m in taxes, penalties and interest, which he has paid as of 3 January. The judge also sentenced Weisselberg to five years of probation after his release.Allen Weisselberg: ex-Trump finance chief given five months for tax fraudRead morePart of the reason last week’s speakership fight was so high-profile was because it was exceptionally well covered, and much of that was thanks to C-Span.The non-profit organization funded by cable companies is dedicated to broadcasting government affairs, including Congress’s activities. Usually, what it’s allowed to put onscreen is restricted, but as the Washington Post reported last week, it had special permission to roam across the chamber during the standoff for speaker, allowing the public to see the haggling, boredom and emotion that took place on the House floor as Kevin McCarthy lost vote after vote, until finally triumphing on the 15th ballot.Matt Gaetz, a conservative Republican who was one of the ringleaders of the group that delayed McCarthy’s election, was apparently a fan of C-Span’s work. CNN reports that he has filed an amendment to the House rules package to allow C-Span to continue broadcasting freely in the chamber:.⁦@RepMattGaetz⁩ amendment to the House Rules package would allow CSPAN cameras to film the House floor at all times — as we saw last week pic.twitter.com/EVC7tmdP2o— Jake Tapper (@jaketapper) January 10, 2023
      Now that the dust has settled, it’s worth asking whether last week’s protracted House speaker election a good or bad thing for Republicans.The days-long, 15-ballot process that resulted in Kevin McCarthy’s victory early Saturday morning was indeed unprecedented – the last time a speakership election took so long was before the Civil War. And many in the GOP felt like the conservative holdouts who delayed McCarthy’s election for days did more harm to the party’s standing than good. Politico reports that Republican donor Thomas Peterffy sent text messages to some of the holdouts, threatening to cut them off if they didn’t make a deal:At least two Republicans among McCarthy’s 20 holdouts got direct threats from GOP donor Thomas Peterffy last week, per GOP sources I spoke with.Here is a screenshot shared with me… pic.twitter.com/H3pOPT888W— Olivia Beavers (@Olivia_Beavers) January 10, 2023
      That said, a CBS News/YouGov poll released before McCarthy’s election indicates many Republicans may have felt the battle was worth fighting. The data found 64% approved of the way the speakership election was handled, while 36% disapproved.The hallway outside George Santos’s office is the scene of an entrenched stakeout by reporters, as Insider found out when they went down there:made a pilgrimage to the Santos Stakeout pic.twitter.com/HYfF6kzmf3— bryan metzger (@metzgov) January 10, 2023
      Needless to say, most lawmakers do not get this kind of attention.George Santos just can’t catch a break. But perhaps that’s to be expected for someone who brazenly lied in their campaign for Congress.The New York Republican has been hounded by reporters in the halls of Congress ever since he first arrived in the Capitol last Tuesday, and has had a complaint filed against him at the Federal Election Commission. Today, two Democratic congressman made a big show of giving him another complaint, this one being filed with the House ethic committee:.@RepDanGoldman and @RepRitchie filed a complaint with the House Ethics Committee about @Santos4Congress, and then hand delivered it to his office. Santos was in his office when this happened, in the back by the windows. pic.twitter.com/r3264Ht0XS— Kyle Stewart (@KyleAlexStewart) January 10, 2023
      Meanwhile Pete Aguilar, the Democratic caucus chair in the House, said Republican speaker Kevin McCarthy is only allowing Santos to stick around because he’s worried about losing his majority:”Kevin McCarthy owns George Santos.”— House Democratic Caucus Chair Pete Aguilar says “the only reason” Rep. George Santos (R-NY) was sworn into Congress was because McCarthy needs his vote pic.twitter.com/Y9T0uTkg7l— The Recount (@therecount) January 10, 2023
      Mark Warner, the Democratic chair of the Senate intelligence committee, has requested a briefing on the classified documents found at Joe Biden’s former office, as well as the government secrets the FBI discovered last year at Donald Trump’s Mar-a-Lago resort.“Our system of classification exists in order to protect our most important national security secrets, and we expect to be briefed on what happened both at Mar-a-Lago and at the Biden office as part of our constitutional oversight obligations,” Warner said in a statement. “From what we know so far, the latter is about finding documents with markings, and turning them over, which is certainly different from a months-long effort to retain material actively being sought by the government. But again, that’s why we need to be briefed.”In a new interview, Mike Pence commented on classified files being found in a private office used by Biden.Speaking with radio talk show host Hugh Hewitt, Pence called the discovery of classified files from Biden’s tenure as vice president versus the search of Trump’s Mar-a-Lago property a “double standard”.“It’s just incredibly frustrating to me,” said Pence during his interview today.“But the original sin here was the massive overreach.”Read the full article from the Hill here.Republican representative Pat Fallon of Texas has filed articles of impeachment against Secretary of Homeland Security Alejandro Mayorkas.Fallon announced the filing in a Twitter post, linking to a Fox News article.I have officially filed Articles of Impeachment on Secretary Alejandro Mayorkas.👇👇👇https://t.co/I4EBmCB5pI— Rep. Pat Fallon (@RepPatFallon) January 10, 2023
      Here is more context behind Fallon’s filing, from the Hill:.css-cumn2r{height:1em;width:1.5em;margin-right:3px;vertical-align:baseline;fill:#C70000;}Rep. Pat Fallon (R-Texas) filed the paperwork for the resolution on Jan. 3, the first day of the 118th Congress, though with delays in securing a House Speaker, the document was officially filed late Monday.
      The resolution claims Mayorkas “engaged in a pattern of conduct that is incompatible with his duties,” complaining that he has failed to maintain operational control over the border.
      The resolution comes amid a busy week in the Biden administration. President Biden visited the border over the weekend for the first time since taking office, pledging to deliver more resources to the officers who patrol the region.
      And Mayorkas is in Mexico this week, meeting with officials there on a variety of issues, including the shared migration agreement rolled out by the Biden administration last week.Read the full article here.Senate tunnels were briefly closed following a mix-up where a small group breached a locked door on the Senate side of US Capitol complex.According to the United States Capitol police, the group was accompanied by a staffer and were screened following the confusion.Police also noted that the incident was not a threat, but the group using the wrong doors.From Politico reporter K Tully-McManus:Senate tunnels were briefly closed this afternoon after a small group breached a door on the Senate side of the Capitol complex.Tunnels are back open. They were closed for a VERY short time (*just* long enough to disrupt some folks lunch plans.)— K Tully-McManus (@ktullymcmanus) January 10, 2023
      The White House provided more details into a meeting that Biden had with Canada prime minister Justin Trudeau.According to a read out, the two world leaders discussed several global issues including the war in Ukraine, Haiti, and Brazil.Biden also told Trudeau that he looks forward to an upcoming visit to Canada in March.From CBS News corespondent Ed O’Keefe:INBOX: The White House readout of @POTUS Biden’s meeting with @JustinTrudeau says they discussed the situations in Ukraine, Haiti and Brazil and among other things the president, “also stated he looks forward to traveling to Canada in March of this year.”— Ed O’Keefe (@edokeefe) January 10, 2023
      House Republicans are gearing up to launch investigations and trying to make the most of reports that classified documents dating to his time as vice-president were found in an office used by Joe Biden. But unlike with the government secrets the FBI found at Mar-a-Lago, it didn’t take a search warrant for Biden to turn over the material – he ordered it done so immediately, which Democrats are citing to defend the president.Here’s what else is going on today:
      Democratic House lawmaker Katie Porter announced a run for California’s Senate seat up for election in 2024, but its current occupant, Dianne Feinstein, gave no indication she’d be stepping down.
      The House GOP made clear it wants spending cuts in exchange for raising the debt ceiling, which will be necessary later this year.
      George Santos may be an admitted fabulist, but a top House Republican had little to say about whether the party would discipline him for his lies.
      Joe Biden is traveling in Mexico, where he just concluded a meeting with Canadian prime minister Justin Trudeau.He did not answer questions shouted by members of the White House press corps in attendance, including one about the classified documents.CNN reports that an attorney for Joe Biden found 10 documents related to Iran, Ukraine and the United Kingdom in a personal office, dating from his time as vice-president.The attorney clearing out an office Biden once used in Washington DC found briefing materials and intelligence memos from 2013 through 2016, when Biden served under Barack Obama, according to CNN, which cited a source familiar with the matter. The documents were mixed in with family materials, some of which related to the funeral of his son Beau Biden, who died in 2015.Upon realizing the papers were classified, the attorney immediately contacted the National Archives and Records Administration. Biden’s team eventually turned over several boxes “in an abundance of caution, even though many of the boxes contained personal materials, the source said,” according to CNN’s report.California senator Dianne Feinstein is unfazed by Katie Porter’s announcement that she’d run for her Senate seat in 2024.The 89-year-old is the oldest sitting senator, and has in recent months been the subject of reports questioning her fitness to serve. Feinstein was blase when the San Francisco Chronicle asked for her thoughts on the challenge from the 49-year-old Porter:NEW: Feinstein tells @sfchronicle “Everyone is of course welcome to throw their hat in the ring … Right now I’m focused on ensuring California has all the resources it needs to cope with the devastating storms slamming the state.” https://t.co/tgTkfLPFxo— Sara Libby (@SaraLibby) January 10, 2023 More

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      Ginni Thomas ‘never spoke’ about 2020 vote to supreme court justice husband

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      Ginni Thomas ‘never spoke’ about 2020 vote to supreme court justice husbandClarence Thomas’s wife says couple did not discuss challenges to Biden’s election victory, in testimony released by January 6 panel The conservative activist Ginni Thomas has “no memory” of what she discussed with her husband, the supreme court justice Clarence Thomas, during the heat of the battle to overturn the 2020 presidential election, according to congressional testimony released on Friday.Kayleigh McEnany a ‘liar and opportunist’, says former Trump aide Read moreThomas, 65, recalled “an emotional time” in which her mood was lifted by her husband and Mark Meadows, then Donald Trump’s chief of staff, a transcript of her deposition with the congressional committee investigating the January 6 attack on the US Capitol showed.Thomas has been a prominent backer of Trump’s lies that the 2020 presidential election was stolen from him.At 74, her husband is the oldest and most conservative member of America’s highest court, which has played a crucial part in settling disputed elections.The January 6 committee spent months seeking an interview with Ginni Thomas, who was known to have texted Meadows and contacted officials in Arizona and Wisconsin in the aftermath of Trump’s election defeat by Joe Biden. She was eventually interviewed behind closed doors on 29 September.In opening remarks, Thomas said she entered Republican politics long before meeting Clarence Thomas in 1986. She said her husband had never spoken to her about court cases – “it’s an ironclad rule in our house” – and was “uninterested in politics”.She added: “I am certain I never spoke with him about any of the challenges to the 2020 election, as I was not involved in those challenges in any way.”Thomas also claimed the justice was unaware of texts she exchanged with Meadows and took a swipe at the committee for having “leaked them to the press while my husband was in a hospital bed fighting an infection”.She scorned the idea that she could influence the legal decisions of her “independent and stubborn” spouse.But during cross-examination by committee members, Thomas was confronted with the texts she sent to Meadows as Trump baselessly challenged his election defeat.On 24 November 2020, Thomas wrote: “I can’t see Americans swallowing the obvious fraud. Just going with one more thing with no frickin’ consequences, the whole coup, and now this.”Meadows responded: “This is a fight of good versus evil. Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues. I have staked my career on it. Well at least my time in DC on it.”Thomas wrote back a few minutes later: “Thank you. Needed that, this plus a conversation with my best friend just now. I will try to keep holding on.”The committee probed whom she meant by “best friend”.Thomas admitted: “It looks like my husband.”Asked if she remembered what she and Clarence Thomas talked about that made her feel better, Thomas replied: “I wish I could remember but I have no memory of the specifics. My husband often administers spousal support to the wife that’s upset. So I assume that’s what it was. I don’t have a specific memory of it.”Thomas denied having any conversations with Clarence Thomas about the fact she was in contact with Meadows in the post-election period.“He found out in March of this year when it hit the newspapers,” she said, reiterating that her husband “is not interested in politics”.Thomas refused to back down from her view that widespread election fraud took place but declined to offer specific evidence. She admitted she had been “frustrated” that Trump’s vice-president, Mike Pence, did not talk more about “irregularities” in certain states.But having initially expressed hope that lawyer Sidney Powell could overturn the election – “Release the Kraken and save us from the left taking America down,” she wrote – Thomas said Meadows “corrected” her view of the discredited attorney.January 6 report review: 845 pages, countless crimes, one simple truth – Trump did itRead moreThomas told the committee: “I worried that there was fraud and irregularities that distorted the election but it wasn’t uncovered in a timely manner, so we have President Biden.”Regarding her texts with Meadows, she explained that “it was an emotional time” and she is “sorry these texts exist”.She added: “I regret all of these texts.”Critics have argued that given Thomas’s political activities and contacts with Meadows and other key Trump allies, Clarence Thomas should have recused himself from any case linked to the insurrection.The January 6 committee report, published last week, ran to 845 pages but made no reference to Ginni Thomas.TopicsClarence ThomasUS politicsUS supreme courtRepublicansUS elections 2020newsReuse this content More

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      Conservative donors pour ‘dark money’ into case that could upend US voting law

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      Conservative donors pour ‘dark money’ into case that could upend US voting lawGroups submitting amicus briefs to supreme court case in support of Republican lawmakers received $90m in anonymous donations Conservative donors poured tens of millions of dollars of anonymous “dark money” into groups supporting Republican lawmakers in a supreme court case that could upend American election law.The donors backed several groups that have filed supreme court amicus briefs in support of North Carolina legislators in Moore v Harper, according to a recent analysis. They are pushing for a ruling that would take ultimate decisions about voting rights and congressional gerrymandering away from state courts and hand those powers to state legislatures, of which Republicans now control the majority.Could the US supreme court give state legislatures unchecked election powers? Read moreEight conservative groups that submitted amicus briefs in the supreme court case have received close to $90m from dark money donors since 2016, according to Accountable.US, a liberal leaning watchdog group that tracks government corruption.Several of these conservative bastions are also champions of restrictive voting laws.Conservatives want the supreme court to adopt the independent state legislature theory, a once fringe idea now promoted by a coterie of conservative groups that filed amicus briefs, including the Honest Elections Project, the Claremont Institute, and the Public Interest Legal Foundation. The groups boast strong ties to rightwing lawyers Leonard Leo, John Eastman and Cleta Mitchell respectively. Eastman and Mitchell were allies in Donald Trump’s baseless crusade to overturn the 2020 election.Sparked by a North Carolina gerrymandering fight, Moore v Harper has attracted strong opposition from many liberal and some conservative legal experts, who call it a partisan attack on voting rights by prominent conservative groups. Opponents of the case say they’re using a discredited legal theory to boost GOP political fortunes in coming elections.The leading dark money financier of the conservative groups that filed amicus briefs was DonorsTrust, which contributed a whopping $70.5m, Accountable data shows.Other top dark money donors to groups that filed amicus briefs include the Lynde and Harry Bradley Foundation and America First Works, which, respectively, gave $6.1m and $4.8m to outfits that supported the independent state legislature theory. The long time conservative Bradley Foundation boasts Mitchell on its board, while the non-profit America First Works has been allied with Trump since its founding in 2016 under another name.The dark money routed to some of these groups took circuitous routes. For instance, America First Works gave $4.8m to DonorsTrust that was earmarked for the Honest Elections Project, according to Accountable.The Honest Elections Project, which has been a leading advocate for tougher voting laws in recent years, was founded by Leo, a legendary fundraiser, lawyer and co-chairman of the powerful Federalist Society. Leo was instrumental in advising Trump on his three conservative supreme court nominees.DonorsTrust, known as the ATM of the right, has been very generous with other projects Leo has helped spearhead. In 2021, for example, Leo’s 85 Fund – a dark money conduit for conservative legal campaigns and other priorities – received its largest single grant of $17.1m from DonorsTrust, which doled out close to $190m that year.US supreme court hears case that could radically reshape electionsRead moreCritics of the right’s drive to push the independent state legislature theory note the strong influence of well-financed conservative groups along with several like-minded justices.“The ISLT [independent state legislature theory] has been fueled by several conservative justices’ dissents, and other statements, coupled with amicus briefs and public arguments supporting the theory from think tanks, litigation shops, and partisan political organizations,” Thomas Wolf, the deputy director of the democracy program at the Brennan Center for Justice, told the Guardian.Two key Democrats in Congress, Senator Sheldon Whitehouse and Representative Hank Johnson, submitted an amicus brief arguing forcefully against the independent state legislature theory, highlighting the role of conservative groups funded by dark money who have supported voter suppression efforts.“Many of the petitioners’ amici actually attempted to undermine the 2020 election by relying on this theory,” Whitehouse and Johnson wrote. “Other amici share connections with groups and individuals who played a role in those attempts. Still others are presently engaged in voter-suppression and election-subversion efforts.“Rarely has such a noxious assemblage of amici appeared before this court, and their secrecy about their funders and connections does this court a grave disservice,” they added.The high stakes for democracy behind Moore v Harper and other recent supreme court cases involving dark money funded groups trouble Whitehouse, he said.In tandem with Johnson, Whitehouse has introduced legislation that would require amicus filers to disclose funders who donated $100,000, or more than 3% of their gross revenues.In an interview, Whitehouse said his proposed bill coincides with other efforts he has made to have the supreme court change its reporting rules for amicus filers backed by dark money.“I’ve been pushing the supreme court to update their reporting requirements,” he said about the dark money behind several high-stakes cases, but to date the court has “shown no interest”.The independent state legislature theory played a key role in Trump’s failed crusade to get states to invalidate the 2020 election results and was the handiwork of Eastman, who filed the amicus brief for the Claremont Institute, a conservative California based thinktank, that made a similar argument.Eastman’s involvement with Trump’s baseless drive to overturn the 2020 election results, which included promoting an alternative elector scheme to block Congress certifying Joe Biden’s as president, could lead the January 6 panel investigating the Capitol insurrection to file a criminal referral to the justice department for him, as well as Trump and others, according to a recent CNN report.On a related legal front, Eastman’s refusal to turn over 101 documents to the House panel led federal judge David Carter to rule this year that there was substantial evidence Eastman had conspired with Trump to block Congress from certifying the 2020 election results. The “illegality of the plan was obvious”, Carter wrote.Just how much the amicus briefs from Claremont and other conservative outfits backed by dark money will influence the supreme court’s ruling on the independent state legislature theory is hard to discern.Oral arguments in Moore v Harper were heard by the supreme court on 7 December. The court’s three liberal-leaning justices expressed their strong opposition to North Carolina lawmakers’ position, and some conservative justices including Amy Coney Barrett and Brett Kavanaugh also indicated their skepticism about some maximalist versions of the theory.Billions in ‘dark money’ is influencing US politics. We need disclosure laws | David Sirota and Joel WarnerRead moreThe genesis of the Moore v Harper case was a ruling by the North Carolina state supreme court in early 2022 that invalidated districts drawn by the Republican-controlled legislature on the grounds they were an “egregious and intentional partisan gerrymander”, unfairly favoring the GOP.North Carolina legislator Timothy Moore appealed the state supreme court ruling, and a voter named Rebecca Harper was a named plaintiff in a challenge to the state’s gerrymandered maps.Significantly, North Carolina is one of six states where state courts have ruled in recent years that partisan redistricting plans for Congress violated state constitutions.Moore v Harper has also sparked significant legal blowback from some prominent lawyers with conservative pedigrees including J Michael Luttig, a former appeals court judge who is a co-counsel for litigants opposing the independent state legislature theory.“This case swarms with amicus briefs supporting petitioners that elide a salient fact: the doctrine they encourage this Court to adopt – the ‘independent state legislature’ theory – is one of the fringe legal theories deployed in a failed legal plot to overturn the results of the 2020 presidential election,” Whitehouse and Johnson wrote in their brief.TopicsUS supreme courtThe fight for democracyUS political financingUS politicsRepublicansLaw (US)North CarolinanewsReuse this content More

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      The future of US elections hinges on an outlandish case before the supreme court | Moira Donegan

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      The future of US elections hinges on an outlandish case before the supreme courtMoira DoneganThe ‘independent state legislature’ theory has rarely been put forward, and then only by blatant partisans acting in bad faith Going into the oral arguments for Moore v Harper on Wednesday, it was easy to forget just how radical and strange it was that the US supreme court was hearing the case in the first place.Moore v Harper is a challenge by North Carolina’s Republican-controlled state legislature to a decision by the state’s Democratic-controlled supreme court, which threw out what the court called an excessively gerrymandered congressional district map that the legislature put forward, saying the map violated a state constitutional law guaranteeing free elections. Unhappy, the legislature adopted what used to be a fringe theory: that state courts don’t have much jurisdiction over election matters at all.The US supreme court is poised to strike another blow against gay rights | Moira DoneganRead moreThis used to be the kind of claim that a different supreme court would never dignify by granting certiorari. The “independent state legislature” theory has been put forward only a handful of times over the past hundred years, and even then, only by blatant partisans acting in transparent bad faith.But “blatant partisans acting in transparent bad faith” is now a decent description of the supreme court, so the meritless case is being heard this term. And the North Carolina legislature’s gambit even has a shot of succeeding. When oral arguments began on Wednesday morning, the theory advanced by the legislature had garnered public expressions of support by four of the nine sitting justices – Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas. As happens so frequently with this court, a theory that was once confined to the radical rightwing fringe has been ushered into doctrinal legitimacy by judges eager to secure conservative outcomes.The independent state legislature theory posits that, when it comes to determining how to conduct federal elections, state legislatures have virtually no limits on their authority and no other government bodies that can check them. State constitutions can’t limit how legislatures order elections, according to this theory, and neither can state courts.It’s an odd conception of state legislatures, picturing their power over elections as special and different, not subject to the ordinary checks and balances of executive actions and judicial review. Under it, all state constitutional provisions that protect voting rights, ensure equal protection of the law and guarantee due process would be moot, as far as elections go; legislatures would not be bound by them.And it’s a vision of state legislative authority in elections that the supreme court has rejected as recently as 2015: in Arizona State Legislature v Arizona Independent Redistricting Commission, the court ruled that voters could use a ballot initiative to create an independent commission to draw new congressional districts. The North Carolina legislature, meanwhile, has itself asked the state supreme court to weigh in on certain election administration questions, making their own claim that that court has no authority on such issues seem odd. If it were adopted by the federal supreme court, the independent state legislature theory would call a mulligan on all of this, disposing of the regular relationship between state legislatures and state courts along with about 100 years’ worth of precedent.The most terrifying case of all is about to be heard by the US supreme court | Steven DonzigerRead moreApplied to appointing electors every four years for the presidential election, this was the theory that backed the election subversion plot cooked up by Trump adviser and disgraced law professor John Eastman: it was the theory that if a state legislature didn’t like the electors dictated to them by the voters of their states, they could simply advance another slate of electors instead.The case before the supreme court now applies the theory to federal congressional elections. It posits that if a state legislature wants to draw a dramatically gerrymandered congressional map – the kind that dilutes the value of votes, erodes the competitiveness of elections and forecloses the ability of the people to express their will through the political process – then it can. State legislators have to abide by the rule of law, according to the theory – except for when they’re determining the rules by which they get to remain in power.Moore v Harper has come to be seen as an existential threat to functioning democracy in America, in no small part because, in the hands of insurrectionists like Eastman, the tenets of the independent state legislature theory have already become fodder for an attempted coup. But it seems that what might decide the fate of the theory is not its threat to the integrity of implementation but practical matters of applicability.At oral arguments on Wednesday, the liberal justices hammered lawyers for North Carolina’s legislature about the unaccountable extra-constitutionality of the scheme. Even the arch-conservative Samuel Alito seemed less than enthused, though there’s no doubt he will support the theory when it’s time to issue opinions. But as in most cases this court hears, those votes were never really in play: Alito will vote for whatever seems favorable to the Republican party; Gorsuch seemed downright excited about the theory at oral arguments; and Thomas’s wife, Ginni Thomas, lobbied for the theory in the aftermath of the 2020 election.Meanwhile, Chief Justice Roberts has been publicly skeptical of the theory, and didn’t give much indication at oral argument that he had changed his mind. Brett Kavanaugh, ever eager to grasp at some semblance of moderation and respectability that might make the public forget that there are multiple credible accusations of sexual assault against him, seems eager to split the baby; he’s indicated in the past that he would prefer a smaller nullification of state judicial review than what the North Carolina legislature is asking for. Theirs are not the votes that matter, in the end. The vote that matters is Amy Coney Barrett’s.The January 6 committee has its sights on Ginni Thomas. She should be worried | Kimberly WehleRead moreAnd so it was exceptionally good news for the country that the Trump appointee appeared skeptical of the petitioner’s argument on Wednesday. The theory, it was pointed out, would create chaos in the federal courts, delegating huge numbers of murky elections disputes to the federal judiciary as state courts are stripped of jurisdiction. The North Carolina legislature’s attorneys tried to make an obscure distinction between “substantive” elections questions, which state courts would not be able to rule on, and “procedural” questions, which they would; Barrett wasn’t buying it, correctly pointing out that that very distinction was likely to be disputed.The theory would create different rules for state and federal elections, fomenting chaos that would enable those with the worst motives to serve their own interests, instead of the country’s. Hopefully, that prospect won’t appeal to Barrett. But the chaos was always precisely the point.
      Moira Donegan is a Guardian US columnist
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      US supreme court hears case that could radically reshape elections

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      US supreme court hears case that could radically reshape electionsCase brought by North Carolina would give partisan state legislatures near total control over elections with no role for courts The US supreme court heard arguments on Wednesday in Moore v Harper, one of this term’s highest profile and most contentious cases which has the potential to fundamentally reshape elections for Congress and the presidency.The justices appeared to be starkly divided along predictable ideological lines as they mulled over the power of state courts to strike down congressional districts drawn by state legislatures because they violate state constitutions.The most terrifying case of all is about to be heard by the US supreme court | Steven DonzigerRead moreRepublicans from North Carolina who brought the case argue that a provision of the US constitution known as the elections clause gives state lawmakers virtually total control over the “times, places and manner” of congressional elections, including redistricting, and cuts state courts out of the process.The Republicans are advancing a concept called the “independent state legislature theory”, never before adopted by the supreme court but cited approvingly by four conservative justices.The direction of questioning at Wednesday’s hearing suggested thatthree of those conservative justices – Samuel Alito, Neil Gorsuch and Clarence Thomas – were open to the idea of adopting the theory, despite decades of precedent from their own court dismissing it. They seemed to have the slightly more tentative backing of Brett Kavanaugh, who was part of the legal team in 2000 that assisted George W Bush through Bush v Gore, the case that in modern times put the independent state legislature theory on the map.On the other side of the argument, the three liberal-leaning justices were profoundly critical of the notion that state legislatures should be given free rein to control federal elections virtually unrestrained by state constitutions and judicial review from state courts. Questions from John Roberts suggested he might be seeking a more narrowly-drawn compromise position.Which left all eyes on Amy Coney Barrett, the third of Donald Trump’s three appointees. Potentially, she might find herself casting the decisive vote.Though it gives little clue as to which side of the fence Barrett will be standing on when the ruling comes down, she did ask several probing questions of the lawyer representing North Carolina’s Republicans. She said that those pushing for state legislatures to be freed up from oversight had a “problem” defining their terms, and she questioned whether the theory had any bearing in legal text.For their part, the liberal justices – Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor – robustly argued that incorporating the theory into constitutional law would be a threat to democracy. Elena Kagan cited three recent supreme court rulings that all counter the theory.Kagan made an impassioned speech about the potential impact of siding with North Carolina’s Republicans. “Think about consequences, because this is a theory with big consequences … This is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country, at exactly the time when they are needed most.”She warned that a broad ruling could unleash state legislatures to carry out extreme forms of gerrymandering, tear up voter protections and even certify election results according to their own political interests.Moore v Harper came about after the North Carolina state supreme court struck down districts drawn by Republicans who control the legislature because they heavily favored Republicans in the highly competitive state. The court-drawn map used in last month’s elections for Congress produced a 7-7 split between Democrats and Republicans.North Carolina is among six states in recent years in which state courts have ruled that overly partisan redistricting for Congress violated their state constitutions. The others are Florida, Maryland, New York, Ohio and Pennsylvania.State courts have become the only legal forum for challenging partisan congressional maps since the supreme court ruled in 2019 that those lawsuits cannot be brought in federal court.In North Carolina, Republican lawmakers will not have to wait for the court’s decision to produce a new congressional map that is expected to have more Republican districts.Even as Democrats won half the state’s 14 congressional seats, Republicans seized control of the state supreme court. Two newly elected Republican justices give them a 5-2 edge that makes it more likely than not that the court would uphold a map with more Republican districts.One of the striking features about Wednesday’s legal debate was how the usual ideological positions of the two sides were turned on their heads. The conservative justices, who have often invoked states’ rights in previous rulings – not least in last year’s seminal decision to overturn abortion rights – sounded at times to be almost anti-federalist.After the US solicitor general, Elizabeth Prelogar, accused the petitioners of making an “atextual, ahistorical, and destabilizing interpretation of the elections clause”, Thomas intervened. “I must say, it seems a bit ironic that you’re on the other side of the federalism issue,” he said, apparently unaware of the irony of his own position.By contrast, lawyers speaking against the state legislature theory turned on several occasions to the historical record of the founding fathers as well as close textual analysis of the constitution – tactics normally associated with the rightwing supermajority. “Over 233 years, this court has never second-guessed a state court interpretation of its own constitution in any context,” said Neal Katyal, a lawyer representing Common Cause, an ethics-in-government group which is opposing what it claims is an attempted Republican power grab in North Carolina.TopicsUS supreme courtLaw (US)US voting rightsUS politicsnewsReuse this content More

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      The US supreme court is poised to strike another blow against gay rights | Moira Donegan

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      The US supreme court is poised to strike another blow against gay rightsMoira DoneganThe court is hearing a case that could allow the kind of naked discrimination that the gay rights and civil rights movements fought so hard to end It’s not clear what, exactly, Lorie Smith’s problem is. The Colorado woman aspires to be a web designer; apparently, she’s also upset that gay people can get married. Smith is an evangelical Christian who says that her faith makes her object to same-sex marriage.This wouldn’t be anyone’s problem, except that Smith lives in a state with a robust civil rights law, one that forbids business owners who make their services available to the public from discriminating. But Smith really wants to discriminate: she hopes to be able to turn away gay clients from her as-yet-hypothetical wedding website business; she wants to put a banner at the top of her business homepage proclaiming her unwillingness to design websites for gay weddings. The law would forbid this if she ever went into business, so she’s suing.As of now, none of this has actually come up. At the time Smith filed her lawsuit, demanding an exemption to her state’s law, she didn’t even have a business with which to discriminate. The law has never been enforced against her; she’s never had the opportunity to discriminate that she so craves. It’s not clear, in other words, that she really has standing to sue – she’s never been forced to provide services to gay people, so, in legal parlance, there’s no “injury” to speak of. But Smith is an angry conservative, and she’s found some very well-funded lawyers from the Alliance Defending Freedom, a huge rightwing legal organization that has embarked on a nationwide campaign of lawsuits to erode civil rights protections for gay people.The result is 303 Creative v Elenis, a case in which Smith argues that her religious convictions mean that she shouldn’t have to comply with a generally applicable civil rights law, and should be granted license to discriminate by her state. The US supreme court heard oral arguments on Monday, and the 6-3 conservative majority is certain to hand Smith a victory allowing her to deny service to clients based on sexual orientation.A decision from the court is expected next summer. The question, as happens so often with this rabidly conservative court, is not who is going to win. That question was probably answered the moment the court agreed to hear the case, to the point that briefings and oral arguments in hot-button culture and identity cases like 303 Creative have been rendered largely moot.The question, instead, is how far the court will go: how much the justices will unravel the anti-discrimination laws that govern public accommodations – that is, the laws that say that businesses which serve the public cannot deny service to people based on their identity – and how much discrimination, humiliation and bigotry in public life they will unleash upon gay Americans. The question is whether the speech that Smith can deploy in any other form of her life – any belief that she already has every right to broadcast online, or in her church, or in writing, or by holding a sign up in the street – is also an opinion she is entitled to enforce through the conduct of her business.If the 303 Creative case sounds familiar, that’s because it’s more or less a rerun. In 2018, the supreme court heard Masterpiece Cakeshop v Colorado Civil Rights Commission, another case by a business owner challenging the same state law, this time a baker who didn’t want to make a gay couple’s wedding cake. In that case, the court punted, ruling that lower tribunals had mishandled the case, but not making a decision on the merits about whether an individual businessperson’s opinions trumped civil rights law. But the court looked very different in 2018: that punting opinion was written by Anthony Kennedy, who retired soon thereafter and was replaced by his protege, the beer enthusiast Brett Kavanaugh. Since then the court has lurched even further to the right, and has shown a willingness to indulge even the most far-fetched claims of Christian religious litigants.But it’s worth considering what the court did not do when it agreed to hear 303 Creative: it did not grant certiorari on Smith’s claim that her religious freedom was violated by the anti-discrimination law. This is unusual, for this court: since the Trump justices joined the court, turning it from what was already a quite conservative institution into a maximalist, revanchist one with a culture-war axe to grind, the court has expanded free-exercise-of-religion rights quite rapidly – at least, so long as those free-exercise rights are being exercised by conservative Christians.The court has even specifically used the constitution’s free-exercise clause to imply an entitlement to discriminate against homosexuals: in last summer’s Fulton v Philadelphia, the justices ruled that municipal agencies handling the welfare of children in need were obliged to work with a religiously affiliated adoption agency, even though that agency discriminated against gay couples in violation of city civil rights law.But in 303 Creative the court is only considering Smith’s wish to discriminate as a free speech issue. This opens a new avenue for challenges to civil rights law, and will provide an opportunity for rightwing lawyers to begin unraveling the laws regarding non-discrimination in public accommodations in the wake of the civil rights movement, like pulling on a loose thread to unravel a sweater.Though Smith wants to discriminate only against gay couples, and other exemptions to civil rights law are likely to focus on allowing open bigotry against LGBTQ+ people to be expressed in commercial life, there is no limiting principle that means that only gay people will be targeted. After all, if a website designer is allowed to decline to make a gay wedding website, what stops her from making the same claim to refuse an interracial wedding, or an interfaith one? Is she allowed to decline to make sites for birth announcements of children born to gay couples, or via IVF?I keep thinking of the sign that Smith wants to put at the top of her future business’s webpage, the one that says she won’t make websites for gay weddings. It’s essentially an advertisement of her belief in gay people’s inferiority, an effort to exclude them not just from her own goodwill, but from commercial life. How different is such a sign, really, from those that advertised whites-only lunch counters, or the signs that the late Justice Ruth Bader Ginsburg recalled seeing in the windows of shops when she went on family road trips as a child: “No dogs and no Jews”.It has become vogue, in rightwing legal arguments against civil rights law, to speak of the “indignity” imposed on anti-gay business owners who are forced to comply with anti-discrimination law. It’s a shame that the court doesn’t seem poised to consider the indignity of facing discrimination itself.
      Moira Donegan is a Guardian US columnist
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