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      Ginni Thomas lobbied Wisconsin lawmakers to overturn 2020 election

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      Ginni Thomas lobbied Wisconsin lawmakers to overturn 2020 election The wife of supreme court justice Clarence Thomas urged a Wisconsin state senator and representative to do their ‘duty’ Ginni Thomas, the wife of the US supreme court justice Clarence Thomas, lobbied lawmakers in Wisconsin as well as Arizona in November 2020, seeking to overturn Joe Biden’s victories over Donald Trump in both swing states.Thomas emailed lawmakers in support of Trump’s lie that Biden won thanks to electoral fraud.Cheney and Kinzinger tee up possible January 6 subpoena for Ginni ThomasRead moreThe Washington Post reported Thomas’s efforts in Arizona earlier this summer. On Thursday it detailed her efforts in Wisconsin, citing emails obtained under public-records law.Thomas emailed a Wisconsin state senator and a state representative, both Republican, on 9 November, two days after the election was called for Biden.The messages used the same text as those sent to Arizona officials and were also sent using a form-emailing platform.The subject line read: “Please do your constitutional duty!”The text said: “Please stand strong in the face of media and political pressure. Please reflect on the awesome authority granted to you by our constitution. And then please take action to ensure that a clean slate of electors is chosen for our state.”Ginni Thomas did not comment to the Post. Nor did a supreme court spokesperson.Citizens for Responsibility and Ethics in Washington, a watchdog group, said: “Ginni Thomas tried to overthrow the government. Clarence Thomas gets to rule on that attempt to overthrow the government. See the problem?”After the deadly attack on the Capitol on 6 January 2021 by supporters Trump told to “fight like hell” to overturn his defeat, Clarence Thomas was the only justice to say Trump should not have to give White House records to the investigating House committee.Ginni Thomas is now known to have been in touch with Mark Meadows, the White House chief of staff, and John Eastman, a law professor who claimed the vice-president, Mike Pence, could stop certification on January 6, about attempts to overturn the election.The House January 6 committee asked Thomas to voluntarily sit for an interview and provide documentation. Her lawyer, the Post said, told the committee she was willing but he did not think she had to.In July, Liz Cheney, the committee vice-chair, told CNN: “The committee is engaged with counsel. We certainly hope that [Thomas] will agree to come in voluntarily but the committee is fully prepared to contemplate a subpoena if she does not.”No subpoena has been issued.Cheney is a stringent conservative but last month she lost her Republican primary in Wyoming, over her opposition to Trump.She has become popular with some on the left but others have grown frustrated, particularly over the lack of an attempt to compel Ginni Thomas to testify.On Thursday, Elie Mystal, justice correspondent for the Nation, tweeted: “Answer the question ‘Why wasn’t Ginni Thomas subpoenaed by the January 6 committee?’ before you ask me to roll with Liz Cheney.”One of the Wisconsin lawmakers who Thomas contacted, the state senator Kathy Bernier, spoke to the Washington Post.She said: “As we went through the process and the legal challenges were made and discounted by the judicial system, there was nothing proven as far as actual voter fraud.”Bernier also said she did not link Ginni Thomas’s actions to her husband’s position.“I was married for 20 years,” she said. “I took on some identity of my husband, but I had my own mind. Just because you’re married to someone doesn’t mean that you’re a clone.”TopicsUS newsUS Capitol attackDonald TrumpClarence ThomasUS politicsRepublicansArizonanewsReuse this content More

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      New York enacts new gun restrictions in response to supreme court decision

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      New York enacts new gun restrictions in response to supreme court decisionAfter court overturned 1911 New York law, state lawmakers produced act to create ‘gun-free zones’ and strengthen gun control measures After a federal judge said New York could implement gun restrictions passed after the US supreme court struck down a century-old law, the state attorney general saluted “a victory in our efforts to protect New Yorkers”.Texas judge overturns state ban on young adults carrying gunsRead more“Responsible gun control measures save lives and any attempts by the gun lobby to tear down New York’s sensible gun control laws will be met with fierce defense of the law,” Letitia James said on Wednesday night.In June, in the aftermath of mass shootings at an elementary school in Uvalde, Texas and a supermarket in Buffalo, New York, the conservative-dominated US supreme court overturned a New York law passed in 1911.The law said anyone wanting to carry a handgun in public had to prove “proper cause”.Justice Clarence Thomas said the 111-year-old law was a violation of the second amendment right to bear arms and also the 14th amendment, which made second-amendment rights applicable to the states.“Apart from a few late-19th-century outlier jurisdictions,” Thomas wrote, “American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense.”In dissent, Stephen Breyer, a liberal, wrote: “In 2020, 45,222 Americans were killed by firearms. Since the start of this year there have been 277 reported mass shootings – an average of more than one per day.”The same source, the Gun Violence Archive, now puts that total at 450.Breyer wrote: “Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents. Many states have tried to address some of the dangers of gun violence … the court today severely burdens states’ efforts to do so.”Joe Biden said: “I call on Americans across the country to make their voices heard on gun safety. Lives are on the line.”Kathy Hochul, the governor of New York, said: “The supreme court is setting us backwards … This decision is not just reckless, it’s reprehensible.”Hochul called the legislature back into session. It produced the Concealed Carry Improvement Act, or CCIA.As defined by James, the CCIA “strengthens requirements for concealed carry permits, prohibits guns in sensitive locations, allows private businesses to ban guns on their premises, enhances safe storage requirements, requires social media review ahead of certain gun purchases, and requires background checks on all ammunition purchases to protect New Yorkers”.The law was challenged by the Gun Owners of America and the Gun Owners Foundation. On Wednesday, the GOA said the CCIA “would essentially make all of NY a gun-free zone and infringes upon the rights of its citizens”.Judge Glenn Suddaby, of the US district court in the northern district of New York, said the two gun groups lacked standing to bring the case.But Suddaby also indicated support, describing “a strong sense of the safety that a licensed concealed handgun regularly provides, or would provide, to the many law-abiding responsible citizens in the state too powerless to physically defend themselves in public without a handgun”.An appeal is likely. The CCIA went into effect on Thursday.On Wednesday the mayor of New York City, Eric Adams, said: “The US supreme court’s … decision was the shot heard round the world that took dead aim at the safety of all New Yorkers.“New York City will defend itself against this decision, and, beginning tomorrow, new eligibility requirements for concealed carry permit applicants and restrictions on the carrying of concealed weapons in ‘sensitive locations’, like Times Square, take effect.”The new law has prompted a change in what New York City authorities officially consider to be Times Square. As the New York Times reported, the new boundaries extend far beyond the traffic-choked and neon-blitzed Midtown hub known to tourists worldwide but largely avoided by locals.Under CCIA, the Times Square “gun free zone” will run “from Ninth to Sixth Avenues and from 53rd to 40th Streets and consists of about three dozen blocks”, the paper said.One New Yorker interviewed by the Times dismissed the idea that the Port Authority Bus Terminal, on Eighth Avenue, could be considered part of Times Square, even in order to make it a gun-free zone.“Nah,” Robert Govan, 62, told the city’s paper of record. “No way. Not going to happen.”TopicsNew YorkUS gun controlUS politicsUS supreme courtUS constitution and civil libertiesLaw (US)newsReuse this content More

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      Billions in ‘dark money’ is influencing US politics. We need disclosure laws | David Sirota and Joel Warner

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      Billions in ‘dark money’ is influencing US politics. We need disclosure lawsDavid Sirota and Joel WarnerA donor secretly transferred $1.6bn to a Republican political group. Because of America’s lax laws, the donation was never disclosed in any public record or database This week, the Lever, ProPublica and the New York Times discovered the largest known political advocacy donation in American history. We exposed a reclusive billionaire’s secret transfer of $1.6bn to a political group controlled by the Republican operative Leonard Leo, who spearheaded the construction of a conservative supreme court supermajority to end abortion, block government regulations, stymie the fight against climate change and limit voting rights.This anonymous donation – which flowed to a tax-exempt trust that was never disclosed in any public record or database – was probably completely legal.Whether you support or abhor Leo’s crusade, we should be able to agree on one larger non-partisan principle: such enormous sums of money should not be able to influence elections, lawmakers, judicial nominations and public policy in secret. And we should not have to rely on a rare leak to learn basic campaign finance facts that should be freely available to anyone.Unfortunately, thanks to our outdated laws, those facts are now hidden behind anonymity, shell companies and shadowy political groups. America is long overdue for an overhaul of its political disclosure laws – and news organizations in particular should be leading the charge for reform.In the early 1970s, leaks and shoe-leather reporting by news organizations uncovered the Watergate scandal – the modern era’s foundational dark money exposé. That debacle birthed the original federal disclosure laws and a golden age of journalism. For a time, the new statutes allowed campaign finance reporting to become systematic, methodical and based on required disclosures, rather than sporadic, random and reliant on the goodwill of courageous whistleblowers.A half-century later, however, the dark money practices of 50 years ago have again become normalized. In 2020 alone, more than $1bn worth of dark money flooded around weak disclosure rules and into America’s elections, financing Super Pacs, ad blitzes, mailers and door-knocking campaigns. As millions of votes were swayed, reporters and the public had no knowledge of the money sources, or what policies they were buying.Heading into the 2022 election, the situation is getting worse. The two parties’ major Senate and House Super Pacs are all being funded by anonymous dark money groups that are not required to disclose their donors.These problems aren’t unique to the campaign arena. Front groups are also shaping public policy, leaving reporters unable to tell voters who exactly is funding what. In the last few years, an anonymously funded group used post-election ads to successfully pressure lawmakers to water down landmark healthcare legislation designed to eliminate so-called “surprise” medical bills.Similarly, Leo’s anonymously funded network spent tens of millions to boost the nomination campaigns of three conservative supreme court justices, after leading a campaign supporting Republicans’ refusal to hold a vote on Barack Obama’s 2016 high court nominee, Merrick Garland.To be sure, news outlets can still cover the shrinking portion of the political finance system that still discloses some money flows to politicians, lobbyists and advocacy groups. And thankfully, there are occasionally disclosures like the Leo leak, which provide a fleeting glimpse into the real forces influencing sweeping policy decisions.But for every sporadic leak, there are scores of secret donors systematically funneling ever more dark money into elections and legislative campaigns without ever being exposed – and they are reaping the rewards of corrupted public policy.That’s the bad news. The good news is there is already a legislative blueprint for reform.The Disclose Act, sponsored by the Democratic senator Sheldon Whitehouse, would force dark money groups to disclose any of their donors who give more than $10,000, require shell companies spending money on elections to disclose their owners, and mandate that election ads list their sponsors’ major contributors. These requirements would extend not only to election-related activity, but also to campaigns to influence governmental decisions – including judicial nominations.A separate Whitehouse bill would additionally require donor disclosure from shadowy groups lobbying the supreme court through amicus briefs designed to tilt judicial rulings without letting the public know which billionaire or CEO’s thumb is on the scale. And other pending legislation would finally allow the Securities and Exchange Commission to require major corporations to more fully disclose their political spending.Journalists should proudly advocate for laws like these, which allow us to tell the public what its government is doing. Our industry has done that before in defending open records laws, and we must do it now in advocating for new campaign finance disclosure rules.In practice, that means reporters elevating the transparency issue and demanding answers from politicians about where they stand on disclosure laws – rather than ignoring or downplaying the rising tide of dark money now shaping every public policy in America.It means newspaper editorial boards advocating for campaign finance reform.It means media organizations lobbying for stronger disclosure laws at the federal, state and local levels.It means the journalism industry participating in – and at times leading – this fight, rather than using objectivity as a cop-out.This battle to update campaign finance disclosure laws and bring sunlight to the darkest of dark money already faces powerful opponents. In recent years, the US Chamber of Commerce and Koch Industries – which represent some of America’s biggest dark money spenders – have been lobbying against the Disclose Act, preventing it from advancing for more than a decade.The Koch network recently convinced the supreme court’s conservative bloc to strike down a California law requiring non-profit dark money groups to at least disclose their major donors to state tax regulators, after spending to back some of those justices’ confirmations to the court.Most recently, conservative groups and Republican state attorneys general have been trying to block a proposal to force companies to disclose greenhouse gas emissions by arguing that it is unlawful “compelled speech” – a preview of the argument they might use against new campaign finance transparency legislation.Just as alarming, segments of the journalism industry itself have opposed transparency efforts. The National Association of Broadcasters (NAB) — which represents the major media outlets making huge profits off of dark money ads — tried to block a rule at the Federal Election Commission a decade ago to require TV and radio stations to disclose ad buys from political groups, arguing it would cost them advertising revenue. The NAB has recently successfully opposed the Federal Communications Commission’s requirements that broadcasters disclose when foreign governments sponsor material. NAB is right now lobbying on the Disclose Act.But this week’s revelations about history’s largest dark-money donation should be an alarm telling us that the status quo must change – and indeed it can change, even within the confines of the supreme court’s own precedents.In the landmark Citizens United ruling that unleashed the modern era of big money politics, the majority noted that while it was unwilling to permit political spending restrictions, it still held that “government may regulate corporate political speech through disclaimer and disclosure requirements”.Those requirements are so desperately needed now – for the free press to play its vital role, and for voters to make informed decisions when they go to the polls.But the only chance it will happen is if news outlets and reporters get off the sidelines and enter the battle to secure what they need to do their jobs – and what we all need to preserve our democracy.
      David Sirota is an award-winning journalist who founded the investigative news outlet the Lever
      Joel Warner is the Lever’s managing editor
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      Slew of trigger laws kick in as three more US states ban abortions

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      Slew of trigger laws kick in as three more US states ban abortionsTennessee, Texas and Idaho join eight other states as millions of women will lose access to abortion and in certain cases doctors will be punished for performing procedure A slew of trigger bans across three US states kicked in on Thursday as Tennessee, Texas and Idaho join eight other states that have formally outlawed abortion since the supreme court overturned Roe v Wade in June.Depending on the state, trigger laws are designed to take effect either immediately following the overturn of Roe or 30 days after the supreme court’s transmission of its judgment, which took place on 26 July.Currently, nearly one in three women between the ages of 15 to 44 live in states where abortion has been banned or mostly banned. According to data obtained by the US census, that is nearly 21 million women affected.“More people will lose abortion access across the nation as bans take effect in Texas, Tennessee and Idaho. Vast swaths of the nation, especially in the south and midwest, will become abortion deserts that, for many, will be impossible to escape,” Nancy Northup, CEO of the Center of Reproductive Rights, said in a statement.“Evidence is already mounting of women being turned away despite needing urgent, and in some cases life-saving, medical care. This unfolding public health crisis will only continue to get worse. We will see more and more of these harrowing situations, and once state legislatures reconvene in January, we will see even more states implement abortion bans and novel laws criminalizing abortion providers, pregnant people, and those who help them,” she added.Thursday’s trigger bans strip away the right to abortion access for millions of women in Tennessee, Texas and Idaho and in certain cases punish doctors and healthcare providers for performing the procedure.In Tennessee, the state’s previous abortion law that bans the procedure after six weeks of pregnancy has been replaced with a stricter law. Aside from the exception of preventing the mother’s death or permanent bodily injury, the law bans abortion completely. It does not make any exceptions for victims of incest or rape.The law, called the Human Life Protection Act, makes it a felony for those who are caught performing or attempting to perform an abortion. Consequences include fines, prison time and the loss of voting rights.According to the law, abortions are prohibited from being performed based on mental health claims, including claims that the woman may “engage in conduct that would result in her death or substantial and irreversible impairment of a major bodily function”.Texas, which already passed one of the nation’s strictest abortion laws last yearbanning the procedure beyond six weeks of pregnancy and offering no exceptions for incest or rape, will see a new trigger law take effect that makes the provision of abortion a first-degree felony. Consequences include life sentences and a civil penalty of $100,000 for each violation.“The criminal penalties will further chill the provision of care to women who need it,” Elisabeth Smith, director of state policy and advocacy for the Center of Productive Rights, told the Washington Post.Texas’s trigger ban comes a day after a federal judge in the state blocked an order from the Biden administration issued in the wake of the supreme court’s overruling of Roe that required hospitals to provide emergency abortions.According to Judge James Hendrix, a Donald Trump-appointee, the US Department of Health and Human Services overreached in its guidance interpreting the Emergency Medical Treatment and Active Labour Act. The 1986 law, also known as Emtala, requires people to receive emergency medical care regardless of their ability to pay for the services.“That guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict,” Hendrix wrote in a 67-page ruling.The White House press secretary, Karine Jean-Pierre, condemned the decision, calling it a “a blow to Texans”, and adding, “It’s wrong, it’s backwards, and women may die as a result. The fight is not over.”Abortions in Idaho were previously limited to a six-week period into pregnancy. However, Thursday’s trigger law completely prohibits abortion with the exceptions of reported cases of rape and incest and to prevent the death of the mother – but not necessarily to safeguard her health.The ban makes performing an abortion in any “clinically diagnosable pregnancy” a felony that is punishable by up to five years of jail time.Despite the sweeping ban, an Idaho judge barred the state at the 11th hour from enforcing its abortion ban in medical emergencies, making the ruling the exact opposite of Hendrix’s decision in Texas. The ruling from federal judge Lynn Winmill on Wednesday evening says that the state cannot prosecute anyone who performs an abortion in an emergency medical situation.“At its core, the supremacy clause says state law must yield to federal law when it’s impossible to comply with both. And that’s all this case is about,” Winmill wrote. “It’s not about the bygone constitutional right to an abortion,” he added.With such conflicting rulings, both cases could be appealed and the supreme court may be asked to intervene.TopicsRoe v WadeUS supreme courtAbortionRepublicansUS politicsTennesseeTexasnewsReuse this content More

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      US supreme court backs Black voters challenging Georgia election rules

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      US supreme court backs Black voters challenging Georgia election rulesRuling comes as plaintiffs say current Georgia public service commission election system discriminates against Black voters Black voters challenging Georgia’s method of electing members to the state’s public service commission scored a preliminary US supreme court order in their favor late Friday.The decision came after conflicting rulings from lower courts earlier this month, offering up a rare example of the supreme court’s 6-3 conservative majority’s siding with voters over state officials.Louisiana woman faces ‘horrifically cruel’ abortion choice over fetus missing skullRead moreEarlier this month, a federal district judge found that the current system gave Black residents’ votes less weight. Each of the commission’s five seats hold jurisdiction over a specific district, but each seatholder is elected in a statewide race that dilutes Black voters’ power, said that ruling, which came from Trump White House-appointed judge Steven Grimberg.Grimberg ordered the postponement of a November election for two commissioners’ seats to allow the state legislature the time to create a new system for electing commissioners, granting a request from a group of voters challenging the system.However, last week, the federal 11th circuit court of appeals temporarily halted Grimberg’s ruling, citing the “Purcell principle”, which discourages courts from changing election rules immediately before an election.The supreme court on Friday reinstated the Grimberg ruling, with the plaintiffs citing testimony from numerous experts who found the current Georgia public service commission election system to be discriminatory against Black voters.Political data analyst Bernard Fraga, who focuses on the behavior of voting within communities, testified that statewide voting lets Georgia’s majority white population drown out votes coming from districts with mostly Black residents.“And, because elections are staggered, a minority group has less of an opportunity to concentrate its voting strength behind a candidate of choice,” Fraga said, according to the ruling.The ruling also cited the testimony of a former employee at the US justice department’s civil rights division, Stephen Popick.He said his study on voting behavior in Georgia between 2012 and 2020 showed “voter polarization” between Black and white voters, and the latter’s candidate always won even though Black voters all got behind the same leader as a group.Plaintiffs attorney Nico Martinez on Saturday told the Guardian he is “confident the district court’s well-reasoned decision will ultimately be upheld” as the case continues playing out in the 11th circuit, which could still block Grimberg’s ruling on other grounds, paving the way again for the November election date.“We are pleased that the supreme court took this important step to ensure that this November’s [public service commission] elections are not held using a method that unlawfully dilutes the votes of millions of Black citizens in Georgia,” said Martinez, a partner at the law firm Bartlit Beck.TopicsGeorgiaUS politicsUS supreme courtLaw (US)newsReuse this content More

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      Mitch McConnell greatly damaged US democracy with quiet, chess-like moves | Gary Gerstle

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      Mitch McConnell greatly damaged US democracy with quiet, chess-like movesGary GerstleWhile Trump’s coup attempt may have failed, McConnell’s own machinations have proven highly effective The January 6 committee has now revealed how far Donald Trump was willing to go to prevent the peaceful and lawful transfer of power from his presidency to that of Joe Biden. Yet, his deadly serious attempt to upend American democracy also had a slapdash quality to it, reflecting Trump’s own impulsive nature and his reliance on a group of schemers – Rudy Giuliani, Mike Flynn, Sidney Powell, Roger Stone and John Eastman among them – of limited ability. It is not entirely surprising that Trump’s coup failed.Another brazen GOP action, however, has succeeded – this one engineered by the Senate minority leader, Mitch McConnell, whose chess-like skills of political strategizing put to shame Trump’s powerful but limited game of bluster and bullying. The act to which I refer is McConnell’s theft of Barack Obama’s 2016 appointment to the supreme court, a radical deed that has dimmed somewhat in public consciousness even as it proved crucial to fashioning a rightwing supreme court willing to overturn Roe v Wade and to destabilize American politics and American democracy in the process.This summer may be one of the most consequential in US democracy | Thomas ZimmerRead moreMcConnell is widely considered to be a cynic about politics, more interested in maintaining and holding power than in advancing a particular agenda. This is true up to a point. But it is equally true that McConnell has believed, for decades, that the federal government had grown too large and too strong, that power had to be returned to private enterprise on the one hand and the individual states on the other, and that the legislative process in Washington could not be trusted to accomplish those aims. Hence the critical role of the federal courts: the federal judiciary, if sufficiently populated by conservative jurists, could constrain and dismantle the power of the federal government in ways in which Congress never would. It was fine, in McConnell’s eyes, for Congress to be paralyzed and ineffectual on most domestic issues, as long as the GOP, when in power, stacked the federal judiciary and the supreme court with conservative judges and justices. Thus, across Trump’s presidency, McConnell pushed 175 district court appointments and 54 court of appeals appointments through the congressional confirmation process, far exceeding in numbers what Obama had managed during the second term of his presidency.The supreme court, of course, was the biggest prize of all. The GOP had failed for 30 years to fashion a court to its liking, largely, it believed, because too many of its appointees – Sandra Day O’Connor, David Souter, Anthony Kennedy, and even John Roberts – had gone “rogue” on key issues: gay rights, gay marriage, affirmative action, Obamacare and, most of all, abortion. McConnell was worried that the GOP would fail again, this time under his watch as majority leader. Hence his willingness to steal an appointment that by historical practice and precedent belonged to Obama.The tale of McConnell’s steal begins in February 2016, when Associate Justice Antonin Scalia, the lion of the judicial right, suddenly and unexpectedly died. Obama had just begun the last year of his presidency, and McConnell was entering his second year as Senate majority leader. McConnell immediately declared that he would hold no hearings on a new supreme court justice, regardless of whom Obama nominated. McConnell’s ostensible justification: it was inappropriate, he declared, for a president on his way out of office to exercise so profound an influence on America’s political future. Let the next president, to be elected in November 2016, decide who the nominee should be. That way forward would, McConnell argued, be a way of letting “the people”, through their choice of president, shape the supreme court’s future.Obama nominated a centrist (and distinguished) jurist, Merrick Garland, in the hopes that it might soften McConnell’s and the GOP’s opposition. McConnell would not budge. He behaved as though no nominee had been put forward, allowing both Garland and Obama to twist in the wind across eight long months. We know the rest of the story: Trump won in November and nominated Neil Gorsuch to fill Scalia’s seat. Gorsuch was an arch-conservative jurist vetted by the Federalist Society. Knowing that he would be unable to secure the 60 votes necessary to bring closure to debate on the nominee, McConnell blew up the filibuster requirement for supreme court justices. Gorsuch was then confirmed (54-45) on the Senate floor.Technically, McConnell had violated no laws. The Senate, by simple majority vote, has the authority to remove the filibuster from virtually any issue at any time. With regard to supreme court nominations, the constitution simply states that the president has the power to nominate justices and that the Senate’s advice and consent are required for confirmation. Still, McConnell’s refusal to authorize any action on Garland broke with 150 years of senatorial precedent and practice. The Senate had rejected nominees in the past, but only after debate and a vote. Some who were told they had little chance of winning such a vote had voluntarily withdrawn their names. A few had seen their cases deferred for a few months. But the last time a nominee was made to suffer Garland’s fate – consigned indefinitely to purgatory – was 1866. And that ancient case had a plausible justification that the Garland case did not: the nomination had come from a president – Andrew Johnson – on his way to impeachment and possible removal from office.McConnell’s action was a calculated gamble. In early 2016, he did not know who or how strong the Republican nominee would be. But he regarded Hillary Clinton, the likely Democratic nominee, as vulnerable and beatable. And he expected his defiance of Obama on a supreme court nomination to fire up the GOP base. The stakes of the battle made the substantial risk worthwhile. McConnell distrusted Chief Justice Roberts because of the latter’s critical role in preserving Obama’s Affordable Care Act – another example, in the majority leader’s eyes, of a GOP-nominated justice going “rogue”. A Garland appointment might well have strengthened the centrism of the court, which is where Roberts wanted the power of his court to lie. McConnell wanted a court that would resist that drift, even if it meant breaking with a time-honored senatorial precedent. The end – a “truly” conservative court – justified the means.Imagine, for a moment, that McConnell in 2016 had followed precedent and held hearings for and a vote on Garland. The moderate Garland might well have been approved and become Scalia’s replacement. Let’s presume, for the sake of argument, that the next two appointments went as they did: Brett Kavanaugh replacing the retiring Anthony Kennedy in 2019 and Amy Coney Barrett replacing Ruth Bader Ginsburg when the latter died in 2020. Had this scenario prevailed, the court would have entered its 2021-2022 term with three progressives (Stephen Breyer, Elena Kagan, and Sonia Sotomayor), one moderate (Garland), and five conservatives (Clarence Thomas, Samuel Alito, Roberts, Kavanaugh and Barrett).This hypothetical court may well have declined to overturn Roe v Wade. Two of the votes that Samuel Alito needed to assemble his majority in the 2022 case repudiating Roe (Dobbs v Jackson Women’s Health Organization) were weak ones: Roberts and Kavanaugh. Roberts astonishingly admitted in his concurrent opinion that he thought it wrong to use Dobbs to overturn Roe, even as he was voting to do so. Kavanaugh, meanwhile, laced his own concurrent opinion with the anguish of someone deeply troubled by the affirmative vote for a Roe reversal that he, too, was casting.What if Garland was sitting on this court rather than Gorsuch? Roberts, still in command of this court, may well have cobbled together a coalition to preserve Roe. He might have pulled a conflicted Kavanaugh to his side, and he might have worked out a deal with the court’s progressives (and probably Garland as well) similar in spirit to the one that Sandra Day O’Connor had engineered in Planned Parenthood v Casey (1992): jurisprudentially messy but workable as a compromise between America’s warring tribes. Were Garland sitting on this court, in other words, women in America today would still have a constitutionally protected right to reproductive freedom.McConnell could not have foreseen in 2016 the particular way in which a majority of justices would coalesce in 2022 to overturn Roe. But his actions then were designed to lay the foundation for this sort of outcome. He resolved long ago that he would allow no principle to stand in the way of his pursuit of a rightwing court. Thus, in October 2020, he did not hesitate to abandon the arguments he made in the Garland case to jam through the Senate Amy Coney Barrett’s confirmation, even though Trump was much closer to the end of his presidential term than Obama had been to his in 2016. The ends – a rightwing court –justified the means.McConnell’s machinations broke no laws. His 2016 supreme court steal, however, upended a century and a half of accepted senatorial practice. The price for the country has been high: damage to the court’s legitimacy, deepening cynicism about Washington politics, and a growing conviction that America’s ailing democratic system can’t be fixed.
      Gary Gerstle is Mellon professor of American history emeritus at Cambridge and a Guardian US columnist. His new book, The Rise and Fall of the Neoliberal Order: America and the World in the Free Market Era, will be published in April
      TopicsUS newsOpinionUS politicsUS supreme courtMerrick GarlandRuth Bader GinsburgAmy Coney BarrettBrett KavanaughcommentReuse this content More

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      Bloodied but unbowed: liberal justices wield dissents as weapon of resistance

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      Bloodied but unbowed: liberal justices wield dissents as weapon of resistance The three justices may be in the minority, but their opinions are sounding an alarm that equal rights are under threat by the new rightwing supermajority of the supreme courtThe US supreme court, with its new rightwing supermajority, is transforming America at breakneck speed. In a single judicial year, it overturned the right to an abortion, unleashed legally carried guns on to city streets, stymied government action to combat the climate crisis and Covid pandemic, and took a hatchet to the time-honored separation of church and state.Seasoned observers described the 2021-22 term that ended in June as perhaps the most momentous in the court’s 233-year history. The six rightwing justices – three of them appointed by Donald Trump – demonstrated an iron grip over blockbuster cases.The three liberal-leaning justices, by equal measure – Stephen Breyer, Elena Kagan and Sonia Sotomayor – were outnumbered and bloodied. When the court reconvenes in October, the retired Breyer will be replaced by Ketanji Brown Jackson, but the same punishing 6-to-3 dynamic will prevail.Bloodied but unbowed. The three liberal justices may be in the minority, but they are fast emerging as a vital resistance to the Trump-instigated judicial revolution now under way.That resistance is reflected in the dissenting opinions produced by the three. Not only were liberal dissents more in evidence in 2021-22 – Sotomayor alone wrote 13, more than she has in any previous term – but the language deployed in them was also direct and unrestrained.The dissents went beyond polite disagreements over jurisprudence. They amounted to the sounding of an alarm, alerting the nation that equal rights, constitutional government, and even what it is to be an American, are all under threat.Here are six of the most visceral warnings contained in the dissents of the three liberal-leaning justices.1. Attacking equal rights and individual freedomsOver 60 white-hot pages of dissent, Breyer, Sotomayor and Kagan tore into the majority ruling in Dobbs v Jackson that overturned the constitutional right to an abortion. Pointing out that such a right had been the law of the land for half a century, they decried the ruling as a full-on attack on an individual’s freedom.“After today, young women will come of age with fewer rights than their mothers and grandmothers had,” the dissenting opinion said. From the moment of fertilization, “a woman has no rights to speak of”.The decision struck at the core of American values, they said. Individual freedom and equal rights “have gone far toward defining what it means to be an American. For in this nation, we do not believe that a government controlling all private choices is compatible with a free people.”2. Overriding the will of Congress and that of the American peopleThe ultimate source of power in the United States is “we the people”. Today there are 240 million citizens eligible to vote for their representatives in Congress and president.And then there are the five men and one woman who control the supreme court and who are busily changing the face of America.The liberal-leaning justices accuse their rightwing peers of supplanting their own will over that of “we the people”. Kagan wrote the dissent to West Virginia v EPA, the majority ruling which hobbled the power of the Environmental Protection Agency (EPA) to tackle the climate crisis by regulating fossil-fueled power plants.Kagan charges the six rightwing justices of ignoring clear instructions given to the EPA by Congress to address the “potentially catastrophic harms” of global heating. The justices had in effect rewritten the Clean Air Act in favour of their own policymaking.“The court appoints itself – instead of Congress or the expert agency – the decisionmaker on climate policy. I cannot think of many things more frightening,” Kagan said.In a separate 6-to-3 ruling, the supermajority blocked the Biden administration’s requirement that employees of large businesses vaccinate themselves against Covid or take weekly tests. A dissenting opinion from all three liberal justices said that, here too, the majority had negated the will of the people as expressed in the 1970 law that commanded the Occupational Safety and Health Administration (Osha) to protect workers “exposed to grave danger”.On the one hand, the dissent said, there is the Osha trying to protect employees from the “grave danger” of Covid. The agency is responsible to the president, who in turn “is responsible to – and can be held to account by – the American public”.On the other hand, there is the supreme court. “Its members,” the dissenters noted acerbically, “are elected by, and accountable to, no one”.3. Undermining the integrity of the supreme court and the rule of lawThe liberal-leaning justices accuse the supermajority of abandoning long-held legal principles in their rush towards radical change. Foremost of these is “stare decisis” – “to stand by things decided” – a respect for past precedents set by the court.By throwing out the right to an abortion established in 1973 by Roe v Wade, the six rightwing justices had disregarded stare decisis, and shown that “today, the proclivities of individuals rule. The court departs from its obligation to faithfully and impartially apply the law,” Breyer, Sotomayor and Kagan wrote.The rightwing justices are very sensitive to the suggestion that they are acting according to political whim rather than legal principle. Last September, Clarence Thomas, arguably the de facto leader of the new supermajority, irritably denied the claim.“The media makes it sound as though you are just always going right to your personal preference,” he bemoaned.He need not look to the media for such an accusation. Three of his fellow justices have expressed it forcefully.In their dissenting opinion in Dobbs, the liberal justices noted that it took less than two years following the appointment of Trump’s third pick, Amy Coney Barrett, for the court to overthrow Roe v Wade. Such a rapid shift, they argued, could not be explained by any change in the social landscape of the country.The only thing that had changed was the composition of the court, and with it “the new views of new judges. The majority has overruled Roe for one and only one reason: because it has always despised them, and now has the votes to discard them.”The consequences of the highest court being seen to be swayed by personal biases rather than legal principles are potentially cataclysmic. “It undermines the court’s legitimacy,” the dissenters warned.4. One law for the rich, another for the poorIn their Dobbs dissent the three justices spell out the impact of ending of abortion rights for women of contrasting means. Wealthy women will “find ways around a state’s assertion of power”, travelling out of states that ban abortion to those where it is legal.Other women without the resources “will not be so fortunate”. They might resort to an illegal abortion and be harmed “or even die”; they might give birth to the child at great cost to themselves and their families; “at the least, they will incur the cost of losing control over their lives”.The dissenters warned that the consequences go beyond the devastating impact on individual women. A central pillar of the US constitution, of American values, has also been destroyed – equal protection under the laws.“The constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.”5. Turning the clock back to the 18th centuryIn New York State Rifle & Pistol Association v Bruen, the supermajority threw out New York’s restricted licensing regime for firearms, opening the door to concealed and loaded handguns being carried publicly in US cities.Thomas, who wrote the ruling, rejected any argument relating to the dangers posed by guns in modern America, where gun violence far exceeds that in comparable countries. Instead, he argued that licensing regimes had to be consistent with “this nation’s historical tradition of firearm regulation” and specifically with the way the US ruled in 1791 when the second amendment right to bear arms was ratified.In his dissent, Breyer said that this “history-only approach” not only ignored the “real and present danger of guns in modern American society”, it set a framework that was so rigid it would be impossible to apply to modern situations “beyond the Framers’ imaginations”.How, for instance, could centuries-old laws “dictate the legality of regulations targeting ‘ghost guns’ constructed with the aid of a three-dimensional printer?”6. This is just the beginningPerhaps the most chilling warning given by the liberal justices is that the hurricane of contentious rulings issued by the supermajority this term is not the end of the revolution – it is just the beginning.“No one should be confident that this majority is done with its work,” they write in their Dobbs dissent.The supermajority could go on to ban all abortions nationwide, from the moment of conception and with no exemptions for rape or incest. They could also use exactly the same arguments deployed to overturn Roe to go after contraception, the right to same-sex intimacy and marriage, and even interracial marriage.The logical conclusion of the supermajority’s legal tactics is that “all rights that have no history stretching back to the mid-19th century are insecure … Additional constitutional rights are under threat.”Sotomayor closed her dissent in Carson v Makin on a profoundly disturbing note. The 6-to-3 ruling bulldozed decades of precedent on the separation of church and state by insisting that Maine had to extend its taxpayer-funded tuition assistance program to include students attending religious schools.“With growing concern for where this court will lead us next,” Sotomayor wrote, “I respectfully dissent.”TopicsUS supreme courtLaw (US)US politicsRepublicansfeaturesReuse this content More

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      This summer may be one of the most consequential in US democracy | Thomas Zimmer

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      This summer may be one of the most consequential in US democracyThomas ZimmerThe Long Summer of 2022 began in May, when the abortion opinion draft leaked, and continued through a series of brutal rulings and congressional hearings American politics is about to take a summer break. The supreme court’s next term won’t start until October. Congress will be in recess in August. And the January 6 hearings will be on hiatus until September. Things will calm down for a little while. Or so it will seem on the surface, at least.This supposed respite follows what historians might come to call the Long Summer of 2022. It began in early May, when Justice Samuel Alito’s draft majority opinion in Dobbs v Women’s Health Organization leaked – the decision that in June overturned Roe v Wade and abolished the right to abortion. This was not the start, but itself a manifestation and apotheosis of a reactionary assault on the post-1960s civil rights era that originated in Republican-led states and has been consistently enabled and actively advanced by the supreme court. The Dobbs leak, which dominated the political discourse for weeks, clearly indicated an escalation of rightwing attempts to turn the clock back by many decades.In early June, the House select committee on the January 6 attack tried to capture the nation’s attention with the first in a series of televised hearings that, for better or worse, have formed the center of the institutional defense of democracy. It all came to a head in the final days of June, when the central political conflict crystallized in the span of just a little over a week. On Thursday, 23 June, the January 6 committee’s fifth hearing focused on Donald Trump’s outrageous attempts to corrupt the justice department. It is generally not a good sign that such an explosive revelation about how the former president tried to nullify a democratic election was able to dominate the news cycle for only about 12 hours.The very next day, the supreme court published its decision to abolish the right to abortion. It came in the context of a remarkably aggressive assault not just on democracy and civil rights, but also on the state’s ability to handle the challenges of a modern, pluralistic society. Within a week, the court undermined the separation of church and state, weakened the ability of liberal states to regulate guns, basically made it clear that it would tolerate even the most brazen racial gerrymandering, and undercut the administrative state’s attempts to tackle environmental problems.Amid all these decisions that left no doubt about the court majority’s intention to help conservatives impose their will on the entire country, Cassidy Hutchinson, former aide to White House chief of staff Mark Meadows, testified in the committee’s sixth hearing, on 28 June. She painted a clear picture of the former president’s deliberate efforts to summon a violent, armed mob. To care about American democracy, in those last days of June, was to exist in a state of constant emergency, whiplash, and exhaustion.Yet even in those hectic days of late June, and certainly throughout the Long Summer of 2022, the experience of most Americans, even those who followed the proceedings in Washington closely, were shaped not just by the political upheavals, but by the normal challenges of everyday life. Stores remained open, people had to go to work, they suffered or celebrated with their favorite sports teams.It would be unfair to denounce these as just illusions of normalcy. In a lot of ways, things really are “normal”, in the sense that most of us continue the routines that dominate our daily lives, even in the midst of a political crisis around us. We have to function, we compartmentalize, we experience a strange mixture of normalcy and emergency that can sometimes feel almost disorienting. Franz Kafka famously noted in his diary on Sunday, 2 August 1914: “Germany has declared war on Russia. Swimming lessons in the afternoon.” Kafka had just witnessed the beginning of what quickly escalated into the first world war. His remark captures the tension between the global and the personal, the extraordinary and the routine, history and everyday life, the outrageous and the mundane.There is always a temptation to resolve that tension by ignoring the emergency and focusing on the ordinariness of it all – because how bad could things possibly be, the sky isn’t ever falling. This, however, is a privilege not available to the women who are dealing with the cruel consequences of their bodily autonomy being denied or the traditionally marginalized, vulnerable groups who are the targets of the reactionary offensive. Such a focus on the markers of normalcy is deceptive and politically dangerous. It is difficult for contemporaries to discern the exact nature and extent of the crisis through which they are living. We can’t necessarily see the democratic backsliding by simply looking out the window – certainly not until it may be too late – but that doesn’t mean there isn’t a continuing crisis underneath.“Crisis”, of course, might be the most overused term in the public discourse. And in its colloquial meaning, in which it vaguely refers to any kind of difficult situation, it certainly doesn’t have much analytical or explanatory value. But if taken seriously, the notion of “crisis” delineates a highly unstable situation in which established strategies, tactics and patterns of behavior don’t work any more, a constellation in which accepted modes of making sense of the world around us prove inadequate and unable to generate viable solutions.The summer of 2022 should have hammered home the fact that all of us who prefer democracy are experiencing such a profound crisis. The supreme court, one of the critical institutions of constitutional government, is not only complicit in the full-on assault on democracy, civil rights and the state’s ability to adequately tackle urgent public policy issues, it is its spearhead. In this situation, simply clinging to the established idea that the public trust in institutions must not be undermined will not be good enough.And it’s true that, in a vacuum, it is highly problematic for authorities to prosecute the leading political opponent of a sitting president. But we are not in a vacuum. We are in a situation in which the former president was the central figure in a multi-layered, multi-month scheme that amounted to an actual coup attempt. Not holding him accountable would gravely endanger the future of constitutional government.In medical terms, the word “crisis” refers to the turning point of a disease: the patient will either recover – or die. In this sense, a crisis is the opposite of a stable equilibrium. And that’s precisely where we find ourselves.After the overturning of Roe, the overwhelming message from all corners of the right has been: We are not done yet – or, as First Things, the pre-eminent intellectual platform of the religious right, put it: Dobbs was just “the end of the beginning” and a “resounding first step”. Nothing more. There’s no appeasing those who are behind the reactionary crusade, no bargain or truce to be had. The refusal to compromise with the vision of multiracial pluralism, with anyone who deviates from their idea of the natural and/or divinely ordained order, is at the heart of their political project. They are not looking for a consolation prize, partial victories, or an exit ramp. They will keep going – until and unless they are stopped.The current situation necessarily marks a turning point. It is a veritable crisis because it will have to be resolved, one way or the other. America will either overcome this reactionary counter-mobilization and make the leap to multiracial, pluralistic democracy – or the country will regress, and let democracy perish before it’s ever been fully achieved in this land.
      Thomas Zimmer is a visiting professor at Georgetown University, focused on the history of democracy and its discontents in the United States, and a Guardian US contributing opinion writer
      TopicsUS politicsOpinionJanuary 6 hearingsUS supreme courtRepublicansDemocratscommentReuse this content More