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      Abortion rights advocates vow to fight on after supreme court hearing

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      Abortion rights advocates vow to fight on after supreme court hearingLeaders say they will look to statehouses and lower courts if justices allow undermining of Roe v Wade In the wake of Wednesday’s supreme court hearing in which a majority of justices appeared willing to significantly curb abortion rights, reproductive rights advocates said they would continue to fight in statehouses and lower courts for the right to choose.The supreme court heard oral arguments in Dobbs v Jackson Women’s Health Organization, widely regarded as the most important abortion rights case in nearly five decades.The case before the court pits Jackson Women’s Health Organization, Mississippi’s last abortion clinic, also known as the “Pink House”, against the state health director, Dr Thomas Dobbs. A decision is expected in June 2022.Conservative US supreme court justices signal support for restricting abortion in pivotal caseRead moreMississippi intends to ban abortion after 15 weeks of pregnancy, a move blocked so far by lower courts.While a significant blow to abortion rights is far from a foregone conclusion, questions from the supreme court’s conservative justices on Wednesday appeared to show a willingness to allow restrictions on abortion at 15 weeks and perhaps earlier in a pregnancy.The case also requests the court overturn Roe v Wade, the landmark 1973 supreme court decision that established a constitutional right to abortion and is the only safeguard for such rights in dozens of conservative US states.Under present law, pregnant people have a right to terminate a pregnancy up to the point a fetus can survive outside the womb, widely regarded as 24 weeks gestation. A full-term pregnancy is considered 39 weeks gestation.In a consensus shared across the political spectrum, at least five justices appeared divided over whether to significantly curb or overturn Roe v Wade.Six of the nine justices lean to the right, with three of them nominated by Donald Trump during his one-term presidency. “Congress could fix the issue right now,” said Nancy Northup, president and CEO of the Center for Reproductive Rights (CRR), the organization that represented abortion providers in the supreme court on Wednesday.Although abortion was legalized in 1973 and has been relied upon by women nationally since then, Congress has never affirmed the right to abortion in legislation. That left the Roe v Wade precedent as the principle protection of the option for termination, while anti-abortion campaigners have brought many legal challenges and also pushed laws undermining access to the procedure.“All these bans and undue burdens in abortion care would be addressed by the Women’s Health Protection Act,” Northup said, referring to a bill recently passed by the US House of Representatives. “That would make sure women can access abortion without unnecessary bans.”Thus far, the bill has been viewed as highly unlikely to pass into law because it would need to overcome the Senate filibuster rule, requiring a 60-vote majority in the evenly divided chamber, where the Republicans would oppose it.Joe Biden said on Wednesday: “I support Roe v Wade. I think it’s a rational position to take.”Julie Rikelman, CRR’s litigation director, who argued before the justices, said campaigners would continue to fight if the supreme court went against reproductive choice. “We will continue to make every argument we can in the federal courts, we will continue to litigate in the state courts … we will not stop fighting, because it is just too important,” Rikelman said.Shannon Brewer, the director of the Pink House, said the coming months would be tough, with her providers “sitting and waiting and twiddling our thumbs” in anticipation of a decision.“It was a difficult day for everybody [but] I listened to the arguments and I think they did a great job at representing women today,” Brewer said.Following what was widely viewed as a hearing favorable to anti-abortion forces, conservatives chimed in.“What we want to see is the court do the right thing and overturn Roe,” said Chip Roy, a Republican US representative from Texas. He decried fears over a threat to choice as a “wailing and gnashing of teeth from the left”.Sam Brownback, the former US ambassador at large for international religious freedom under Trump, said it was time to overturn Roe “and let states address the issue”.Overturning Roe v Wade would effectively return the issue to be decided at state level, where swaths of the south and midwest would be “certain or likely” to ban most abortion. Already, several states have banned abortion at six weeks, though all those laws have been blocked by courts, with the prominent exception of Texas.Some reproductive rights advocates remained optimistic.Schaunta James-Boyd, co-executive director of Trust Women, an organization dedicated to providing abortions in underserved states, said her group “look[s] forward to a positive outcome later in 2022”.The pressure to legislate an affirmative right to abortion in states not openly hostile is likely to increase as a supreme court decision nears. While 26 states are “certain or likely” to outlaw abortion if Roe v Wade were overturned, states such as New York and Illinois have worked to protect abortion rights. Polling shows about six in 10 Americans believe abortion should be legal in “all or most” circumstances.Meanwhile, the House speaker and California Democrat Nancy Pelosi said: “The House is committed to defending women’s health freedoms and to enshrining into law our House-passed Women’s Health Protection Act, led by Congresswoman Judy Chu, to protect reproductive health care for all women across America.”She added that the supreme court “has the opportunity and responsibility to honor the constitution, the law and this basic truth: every woman has the constitutional right to basic reproductive healthcare”.TopicsAbortionHealthGenderUS politicsUS supreme courtLaw (US)newsReuse this content More

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      Kavanaugh signals support for curbing abortion rights as supreme court hears arguments on Mississippi case – live

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      Key events

      Show

      3.31pm EST

      15:31

      Stacey Abrams announces that she is running for governor of Georgia

      1.52pm EST

      13:52

      First confirmed case of Omicron Covid variant in US

      1.39pm EST

      13:39

      Biden reiterates support for the right to abortion in US

      11.40am EST

      11:40

      Kavanaugh signals support for curbing abortion rights

      10.01am EST

      10:01

      Republicans threaten government shutdown over vaccine mandate

      9.10am EST

      09:10

      Good morning…

      Live feed

      Show

      Show key events only

      4.48pm EST

      16:48

      While House Republicans aren’t doing much when it comes to admonishing far-right congresswoman Lauren Boebert for her Islamophobic comments about congresswoman Ilhan Omar, House progressives will be pushing Democrat leaders for action:

      Manu Raju
      (@mkraju)
      House progressives plan to ratchet up calls to strip Lauren Boebert from her committee spots bc of her comments on Ilhan Omar — and will soon go public with a letter to that effect, per two sourcesDem leaders have not made a decision yet on how to proceed.

      December 1, 2021

      4.18pm EST

      16:18

      House Republicans went full high school drama yesterday on Twitter, with Majorie Taylor Greene calling Nancy Mace “trash” and Mace calling Greene “batshit crazy” via emojis.
      This comes because far-right congresswoman Lauren Boebert made Islamophobic remarks about Democrat congresswoman Ilhan Omar, who has since received death threats related to these remarks. Republican congressman Adam Kinzinger called Boebert “trash”, and called out House minority leader Kevin McCarthy for his silence on her remarks.
      It appears McCarthy has finally weighed in – but not directly about the bigoted bullying. Instead, he’s just telling everyone in his party to behave.

      Andrew Solender
      (@AndrewSolender)
      GOP Rep. Don Bacon paraphrases McCarthy’s message on GOP infighting this AM: “Stop it. Quit acting like you’re in high school.”If McCarthy’s private talks w/ MTG don’t work, “at some point, the conference as a whole is gonna be frustrated, speak up… I know that’s bubbling.”

      December 1, 2021

      Andrew Solender
      (@AndrewSolender)
      “I’m not here to be a burden, but at some point you have to defend yourself too” – Bacon on attacks from MTG & co.“We’re not here to get the most clicks, to be TV celebrities. We’re here to govern, and you don’t do that by calling each other names, tearing each other apart.”

      December 1, 2021

      Updated
      at 4.19pm EST

      3.31pm EST

      15:31

      Stacey Abrams announces that she is running for governor of Georgia

      Democrat Stacey Abrams, who many have credited for being among those who helped turn Georgia blue in 2020, has announced that she will be running for governor once again.
      “If our Georgia is going to move to its next and greatest chapter, we are going to need leadership,” Abrams said in her announcement video. “Leadership that knows how to do the job. Leadership that doesn’t take credit without also taking responsibility. Leadership that works hard. Leadership that measures progress not by stats but by our ability for everyone to move up and thrive. Leadership that understands the true pain folks are feeling and has real plans. That’s the job of governor.”

      Stacey Abrams
      (@staceyabrams)
      I’m running for Governor because opportunity in our state shouldn’t be determined by zip code, background or access to power. #gapolBe a founding donor to my campaign:https://t.co/gk2lmBINfW pic.twitter.com/z14wUlo8ls

      December 1, 2021

      Updated
      at 3.33pm EST

      3.24pm EST

      15:24

      More on government funding, the continuing resolution and a possible government shutdown: House majority leader Steny Hoyer, who told reporters yesterday that he planned to pass a CR in the House today, now doesn’t think it’s possible.

      Chad Pergram
      (@ChadPergram)
      From colleague Jason Donner. Hoyer when asked if they could pass the CR to avoid a gov’t shutdown today: “I don’t think so.”

      December 1, 2021

      Chad Pergram
      (@ChadPergram)
      Hoyer on an interim spending bill to avert a shutdown. Says “Schumer and McConnell are negotiating.” He adds “It’s incomprehensible today that we can’t pass a simple CR.”

      December 1, 2021

      3.20pm EST

      15:20

      Whew, a lot happening today. Let’s hop back to Congress, where a handful of Republicans are threatening a government shutdown over the vaccine mandate for the private sector.
      To recap: In September, Joe Biden announced a federal mandate that all companies in the US with 100 employees or more must ensure either that their workers are fully vaccinated against Covid-19 or that they test negative for the coronavirus at least once a week. The deadline for this is 4 January.
      Conservatives across the country have taken issue with this, ranging the gamut of being fully anti-vax to arguing that vaccinations are a deeply personal issue, one in which the government should not be involved. There have been several challenges in courts that have sided against the mandate – the White House has since been urging private companies to act on their own to set their own vaccine mandates, as many have already.
      On top of all this, the federal government runs out of funding on 3 December – yep, two days from now. Congress must pass a stopgap funding bill, also known as a continuing resolution (CR), to prevent a government shutdown that would put hundreds of thousands out of work right before the holidays.
      Since early November, some Republican senators have made it clear that they will not vote for any short-term funding of a federal government with a vaccine mandate. Other conservative members of Congress have since joined in.
      Here’s a quick update on the situation:

      Manu Raju
      (@mkraju)
      Here’s what Sen. Roger Marshall (one of a handful of conservatives who are threatening a brief government shutdown) want before agreeing to a quick vote on the continuing resolution. He told us he wants language in CR that would prohibit OSHA from enforcing vaccine mandate. BUT

      December 1, 2021

      Manu Raju
      (@mkraju)
      Marshall would be OK with a quick final passage vote if there’s an amendment to that effect with a 51-vote threshold. But Ds are likely to insist on a 60-vote threshold. So would he object to a quick vote to pass the funding bill if the amendment were set at a 60-vote threshold?

      December 1, 2021

      Manu Raju
      (@mkraju)
      “We’ll see,” he said. “There’s a long time between now and Friday. But at a minimum, I think at a minimum it deserves a 50-person vote.”At GOP lunch, a number of senators told Marshall and Lee that their goal won’t be achieved if there’s brief shutdown. So I asked him about that

      December 1, 2021

      Manu Raju
      (@mkraju)
      And he said: “Yeah, I think the folks back home want to know how hard we’re fighting for them, that the jobs back home are as important as keeping the federal government open. That’s the hypocrisy up here. It just seems like we have rules for back home that don’t apply here.”

      December 1, 2021

      Updated
      at 3.31pm EST

      2.59pm EST

      14:59

      The Guardian’s David Smith was out front of the supreme court during the oral arguments in the Dobbs v Jackson Women’s Health Organization.
      Anti-abortion supporters waved models of fetuses and held prayer circles, while pro-choice advocates waved signs reading, “abortion is healthcare” and “protect abortion access”.
      Read more here:

      Updated
      at 3.04pm EST

      2.34pm EST

      14:34

      Joanna Walters

      Joe Biden smiled wryly earlier when asked by reporters whether he thought the former president, Donald Trump, put him at risk when Trump had received a positive coronavirus test just three days before the first presidential debate in the 2020 election campaign, according to a new book by former chief of staff Mark Meadows, which was reported exclusively by Guardian US this morning.
      “I don’t think about the former president,” Biden said. That was his only word on the topic.
      Top health official Anthony Fauci said a little later, at the White House briefing, that he had not been aware of that positive test for Trump at that time. Trump subsequently tested negative, according to the Meadows book, but shortly after revealed publicly that he had coronavirus, following which he was admitted to hospital.
      Speaking generally, Fauci said: “If you test positive, you should quarantine yourself.”
      Trump had not done that and had not only stood a few feet from Biden, in person and unmasked, for that first debate, but he continued to travel and hold events in close proximity to people.

      2.16pm EST

      14:16

      Joanna Walters

      Anthony Fauci is continuing to answer media questions at the White House. The top US public health official and chief medical adviser to Joe Biden, said that the molecular profile of the Omicron variant suggests it might be more transmissible than previous strains – and might have a higher risk of evading vaccine protection.
      He emphasized, however, that it is still too early to say what will happen in the pandemic with the emergence of the Omicron variant.
      Fauci urged those who have consistently adopted protection protocols, such as wearing a face mask in indoor settings with crowds, to continue to do so and said those who have stopped such practices should resume.
      Fauci said: “Do the things we have been saying every single day, not just for ourselves but internationally.”
      He said, however, that long term he believes there is “an end game” to the coronavirus pandemic.
      “There is no doubt that this will end, I promise you that, this will end,” he said.
      Fauci has now finished his section of the briefing and left the media room at the White House.

      Updated
      at 3.10pm EST

      2.06pm EST

      14:06

      Joanna Walters

      Anthony Fauci, the director of the national institute of allergies and infectious diseases and chief medical adviser to the US president, has taken the podium in the White House press briefing room.
      He has confirmed what we all just found out – the first case of the omicron strain of coronavirus has been identified in the US.
      “We knew it was just a matter of time,” Fauci said.
      The case was confirmed moments ago by the Centers of Disease Control and Prevention (CDC), the federal health agency, and was identified in California.
      Fauci just said that the case was confirmed by the CDC and the California and the San Francisco health authorities.
      “This is the first case of Covid-19 caused by the omicron variant detected in the US,” said Fauci.
      He said the case involved an individual who returned to the US from South Africa on 22 November and tested positive for coronavirus on 29 November.
      Fauci added that the individual was fully vaccinated but to his knowledge had not received a booster shot. He said the patient has experienced mild symptoms.“We feel good that this patient had only mild symptoms and seems to be improving,” he said.
      He said the patient was isolating and those whom they had come into close contact with had been reached and tested and shown to be negative for coronavirus.
      Fauci reiterated that as many people as possible should get vaccinated and, if they have been vaccinated, get boosted if eligible.
      He told people not to wait to see if there will be a new vaccination designed to deal specifically with variants.
      “Right now I would not be waiting. If you are eligible … get boosted now.”
      It is not yet known for certain if the current vaccines combat omicron, Fauci said. Many experts are optimistic that they provide protection but confirmation of protection or the level of protection are awaited.

      Updated
      at 3.05pm EST

      1.52pm EST

      13:52

      First confirmed case of Omicron Covid variant in US

      Joanna Walters

      The federal authorities have identified the first confirmed case of the Omicron coronavirus variant in the United States.
      We are awaiting a live briefing from the White House from Anthony Fauci, chief medical adviser to Joe Biden and the top infectious diseases public health official in the US, and press sec Jen Psaki. We’ll bring you that.
      But meanwhile, this news is breaking across various wires services and TV news that the Centers for Disease Control and Prevention have the first confirmed US case of Omicron, identified in California.
      The dominant variant in the US at this point is still the Delta strain, which emerged and spread across the country from the summer.

      Updated
      at 3.08pm EST

      1.39pm EST

      13:39

      Biden reiterates support for the right to abortion in US

      Joanna Walters

      Joe Biden gave a simple endorsement of reproductive rights in America moments ago as he remarked after the high-stakes hearing at the Supreme Court in Washington, DC, earlier today. More

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      Justice on the Brink review: how the religious right took the supreme court

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      Justice on the Brink review: how the religious right took the supreme court Linda Greenhouse does a fine job of raising the alarm about the conservative conquest and what it means for the rest of us – it’s a pity she does not also recommend ways to fight backLinda Greenhouse’s byline became synonymous with the supreme court during the 30 years she covered it for the New York Times. She excelled at unraveling complex legal riddles for the average reader. She also had tremendous common sense – an essential and depressingly rare quality among journalists.The Agenda review: how the supreme court became an existential threat to US democracyRead moreBoth of these virtues are on display in her new book, which chronicles “12 months that transformed the supreme court” after the death of the liberal lion Ruth Bader Ginsburg and the obscenely rapid confirmation of her conservative successor, Amy Coney Barrett.As others have pointed out, Barrett’s ascension was the crowning achievement of a decades-long project of the American right, to pack the highest court with the kind of people who delight in telling graduating students things like the proper purpose of a legal career “is building the kingdom of God”.Barrett is also the sixth Catholic appointed to the court. Another, Neil Gorsuch, was raised Catholic but now attends the church of his wife, who was raised in the Church of England.Greenhouse describes the Federalist Society as the principal engine of this foul project. Founded in the second year of the Reagan administration to change the prevailing ideology of the leading law schools, its 70,000 members have become the de facto gatekeepers for every conservative lawyer hoping to serve in the executive branch or the judiciary.Most students of the judiciary know that all 226 judges appointed by Donald Trump were approved by the Federalists. But until I read Greenhouse’s book I never knew that every one of the 500-plus judges appointed by the two Bushes also earned the Federalist imprimatur.“Its plan from the beginning was to … nurture future generations of conservative law students” who years later would form the pool from which “conservative judges would be chosen”, Greenhouse writes.She also adds the telling detail that makes it clear that this situation is even worse than it appears. After Gorsuch thanked a Federalist banquet “from the bottom” of his heart, after his confirmation to the supreme court, the then White House counsel, Don McGahn, told the same gathering it was “completely false” that the Trump administration had “outsourced” judicial selection to the Federalists.“I’ve been a member of the Federalists since law school,” said McGahn. “So frankly, it seems like it’s been in-sourced.”Greenhouse’s main subject is the impact on the law of the replacement of a celebrated progressive, Ginsburg, with the anti-abortion and anti-contraception Barrett. A meticulous examination of the most important cases decided during Barrett’s first term demonstrates how the new justice contributed to Chief Justice John Roberts’ determination to “change how the constitution” understands race and religion.The centuries-old wall between church and state is being eroded and government efforts to promote integration – or prevent resegregation – are under steady attack.Roberts’s opposition to important sections of the 1965 Voting Rights Act goes all the way back to his service in Ronald Reagan’s justice department in the early 1980s. As chief justice he made his youthful scorn for the virtues of integration into the law of the land, writing a majority decision invalidating the plans of Seattle and Louisville to consider race to prevent resegregation of public schools. By a vote of 5-4 the court ruled the consideration of race violated the constitution’s guarantee of equal protection.Roberts’s opinion declared that the school systems’ “interest in avoiding resegregation was not sufficiently ‘compelling’ to justify a racially conscious remedy”.For most of the country’s history, the establishment clause of the constitution has prevented the government from “endorsing or coercing a religious practice or viewpoint”, Greenhouse writes, while “the free exercise clause requires the government to leave believers free to practice their faith”.But Roberts and his allies have thrown things upside down, turning the free exercise clause “from its historic role as a shield that protected believers from government interference into a sword that vaulted believers into a position of privilege”.Greenhouse is a woman of convictions. Even as a reporter, she was famous for taking part in a march supporting abortion rights. In a previous book she bragged of contributions to Planned Parenthood. But none of her critics could ever find any evidence that her stories in the Times were slanted by her personal beliefs.That objective stance was entirely appropriate when she was a daily reporter. But book writing is different. After doing such a good job of describing the decades-long rightwing campaign to produce a court whose views are increasingly at odds with the majority of voters, Greenhouse doesn’t endorse any ideas about how to remedy the situation.Supreme Ambition review: Trump, Kavanaugh and the right’s big coupRead moreShe shows no enthusiasm for the idea of expanding the number of seats on the court, which was championed by Pete Buttigieg and others during the 2020 election, and she doesn’t even support the idea that 83-year-old Stephen Breyer should feel any pressure to retire during the current Congress, to make sure Joe Biden can appoint, and a Democratic Senate confirm, a liberal successor.Similarly, Greenhouse never suggests Ginsburg was wrong to stay in office until her death, rather than retire during Barack Obama’s time in office so that she wouldn’t be replaced by someone like Barrett.Unwilling to regulate dark money’s vicious role in our politics, and happy to eviscerate the most basic protections of the Voting Rights Act, the court is increasingly tethered to religious rightwing orthodoxy.Greenhouse does a superb job of describing how we got here. What she lacks is the passionate imagination we need to re-balance an institution which poses an urgent threat to American democracy.
      Justice on the Brink is published in the US by Random House
      TopicsBooksUS supreme courtUS constitution and civil libertiesLaw (US)US politicsPolitics booksReligionreviewsReuse this content More

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      America is at a crossroads. The supreme court may decide which way it goes | Gary Gerstle

      by

      America is at a crossroads. The supreme court may decide which way it goesGary GerstleThe sitting justices face a once-in-a-lifetime crisis of legitimacy that could determine the future of the US Common sense suggests that America ought to reform its ancient constitution. The country, after all, is vastly different from what it was when founded in the 1780s and 1790s. The electoral college may have made sense at the dawn of the democratic age, but now it is an embarrassment, violating the core principle that every vote in presidential contests ought to count the same as any other.Pointed questions suggest US supreme court ready to ease restrictions on gunsRead moreHaving had no experience with the mass democracy they called into being, the framers of the constitution gave little thought as to how best to keep monied interests from corrupting electoral outcomes. And they had no clue about how questions of sex and sexuality would one day convulse their republic. Constitutional amendments passed today could abolish the electoral college, curtail the influence of private (and especially dark) money on politics, and establish a right to an abortion or a broader right to privacy in matters sexual and otherwise.When we ask, however, whether any of these amendments have a reasonable chance of becoming law, the answer is no. The explanation is as mind-boggling as it is straightforward: For all intents and purposes, the constitution cannot be changed. The framers set an impossibly high bar for revision: two-thirds approval for a proposed amendment from each House of Congress, followed by majority approval from three-quarters of the state legislatures. Imagine a vote for Brexit crossing that double threshold. It never would.The US constitution has been amended a mere 27 times across its 230-year history. The meaningful total is actually far less. The first 10 “Bill of Rights” amendments should not be regarded as amendments, since they were part of the original debate and ratification of the constitution in the years from 1789 to 1792. The three civil war amendments (1865-1870) were passed in unique circumstances of internal war, secession, and reconstruction. Two Prohibition amendments that canceled each other out (the first authorized a ban on alcohol and the second repealed it 14 years later) inflate the official count. A few other amendments addressed matters too minor to discuss. The total number of significant amendments passed in non-civil war circumstances, then, rapidly shrinks to single digits: about one every 25 to 30 years. Only during the Progressive era (1900-1920) did Americans find a way to make amendments a useful tool of politics: the direct election of senators, women’s suffrage and Congress’s right to levy income taxes were all written into the constitution at this time. No prior or subsequent generation has figured out how to duplicate the Progressives’ success. Even Antonin Scalia, the great believer in the genius of the constitution as it was originally written, admitted that a constitution written in stone was not serving anyone well.The unchangeability of the constitution is not a new problem, of course. Liberal and conservative jurists across the generations have creatively refashioned the constitution into new shapes to address new realities. Consider Louis Brandeis, who insisted that the constitution be treated as a living document whose principles needed to address matters “of which our fathers could not have dreamed”. Twentieth-century judges, Brandeis believed, were obligated to adapt 18th-century principles to novel circumstances and, occasionally, to discern in those principles as yet unenumerated rights. To think otherwise, Brandeis declared, would be to turn the constitution into a series of “impotent and lifeless formulas”.If the supreme court sometimes sought and achieved moments of Brandeis-style brilliance, it also suffered through periods of hubris or brittleness when justices, in pursuit of a political agenda or a misguided sense of principle, forgot where the ultimate source of their authority lay: not with the statutes themselves, or with framers of the constitution, but with the American people.Between 1789 and 1791, large assemblies of citizens in nine of the 13 states voted both to ratify and modify the document that the framers had handed them. This ratification process gave meaning to the critical preamble to the constitution: “We the people of the United States … do ordain and establish this constitution for the United States of America.” The supreme court must sometimes rule against majority opinion, which can be ill-considered, even tyrannical. But if the court repeatedly ignores or, worse, displays contempt for deep-seated and enduring popular convictions, it risks not just its own authority but that of the entire governing system of which it is part.Two historical examples illustrate this point. The first was the notorious Dred Scott decision of 1857, when Chief Justice Roger Taney and a large majority of justices declared on specious grounds that African Americans, enslaved or free, were not and would never be entitled to US citizenship and thus to constitutional rights and privileges. The outrage generated in the north by this decision hastened America’s descent into civil war.The second moment occurred in the 1930s, when four conservative justices were preparing opinions to strike down two pillars of Roosevelt’s New Deal, the Social Security Act and the National Labor Relations Act. These “Four Horsemen”, as they were known, were opposed by a progressive bloc consisting of Brandeis and two other justices wishing to uphold the New Deal. In the middle sat two moderates, Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts. Had one or both joined the horsemen, they might have plunged America into a second civil war, this one between capital and labor.The scenario of war was not far-fetched. Americans had declared their support for the New Deal by giving Roosevelt a resounding election victory in the 1936; they would not have tolerated the supreme court frustrating the will of the people by striking down the New Deal.To save his legislative program, Roosevelt was threatening to push through Congress a law that would allow him to “pack” the court with his own appointees. Meanwhile, members of the United Auto Workers had occupied several General Motors factories in Michigan, forcing one of the world’s most powerful corporations to shut down production. Staying for six weeks, the “sit-down” strikers dared mayors, a governor, judges, and a president to call in the police, national guard, or US military to evict them.At this moment of industrial confrontation and looming political crisis, both Hughes and Roberts signed on to two critical decisions that secured FDR’s New Deal. Roberts insisted in subsequent years that jurisprudential evolution, not political pressure, had shaped his decision. Hughes struck a different pose. He seemed to understand that the judiciary, though independent, was part of a political system established to make the people sovereign. And that at certain crucial moments, the will of the people had to be honored. If this could not be done by constitutional amendment, it would have to occur through some other means.The supreme court today faces another critical test of its legitimacy, as it prepares to deliver pivotal rulings this year on abortion, gun rights, and government funding for religious schools. It is likely that important “right to vote” cases will soon come before the court as well. The court must render its rulings in circumstances that have already seriously damaged its reputation. I am referring, of course, to the true steal in American politics: not the presidential election of 2020 but Mitch McConnell’s hijacking of two supreme court appointments to achieve the GOP’s 40-year quest for an impregnable conservative majority. The beneficiaries of that steal – associate justices Neil Gorsuch and Amy Coney Barrett – have given conservatives their largest majority on the court in 90 years.Will this court, and its swollen Republican majority, succumb to the Taney temptation in Dred Scott, and attempt to settle divisive matters once and for all in ways that suit the wishes of their most fervent supporters? Or will the court follow the Hughes path and recognize that this is a moment when considerations of the American people’s “general welfare” must enter judicial deliberations?Chief Justice John Roberts has shown himself to be a Hughes man, able to put country before party (as he did in his critical vote upholding the Affordable Care Act). But McConnell’s machinations have removed control of the court from Roberts’s hands. Clarence Thomas, Samuel Alito, and Neil Gorsuch seem implacable in their conservatism. The progressive caucus of Stephen Breyer, Sonia Sotomayor, and Elena Kagan is too small to accomplish anything on its own, even with Roberts as a sometime ally. That leaves the future of this court in the hands of Barrett and Trump’s third appointee, Brett Kavanaugh. Does either have the integrity or vision to move the court and the country to a better place? We shall see.
      Gary Gerstle is Mellon Professor of American History at Cambridge. His new book, The Rise and Fall of the Neoliberal Order, will be published in April. He is a Guardian US columnist
      TopicsUS supreme courtOpinionUS politicscommentReuse this content More

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      Kyle Rittenhouse isn’t crying for those he hurt. His tears, tellingly, are for himself | Moira Donegan

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      Kyle Rittenhouse isn’t crying for those he hurt. His tears, tellingly, are for himselfMoira DoneganWhen conservative men like Rittenhouse and Brett Kavanaugh express their feelings, it is an act of thwarted entitlement – or a threat His voice choked up and his face went red. The young man squinted and panted, his mouth pulled up plaintively towards his nose, his answers to the questions coming out in gasping little bursts. Kyle Rittenhouse, on the stand testifying at his trial for killing two people and wounding a third last summer at a racial justice protest in Kenosha, Wisconsin, was not crying for the men he killed, Joseph Rosenbaum and Anthony Huber. He was crying for himself, describing what he said was his mortal fear that night in August 2020, when he opened fire on the protesters using an AR-15. “I didn’t do anything wrong,” Rittenhouse gasped, describing how he had confronted and ultimately killed the two men while he was guarding the lot of a car dealership. “I defended myself.”Rittenhouse was 17 at the time of the shooting; he is 18 now. The young man’s emotional testimony had a practical purpose: it was a performance meant to make him seem helpless and childlike, and to convince the jury in his homicide trial that there was a reasonable possibility that he was in fear for his life when he shot the three men. But to many, the emotion of Rittenhouse’s testimony seemed to stem not from his memories of the incident, but from the indignant entitlement of a white man thwarted in the enforcement of his own privilege.Many compared Rittenhouse’s tears during his testimony to those of Brett Kavanaugh, who shouted, red-faced and spitting, during his confirmation hearings, when he was asked questions about his alleged assault of Christine Blasey Ford, back when he was Rittenhouse’s age. Both of the displays prompted questions about their sincerity and opportunism. Was Rittenhouse really crying? Was Kavanaugh just putting on a show for Donald Trump to watch on TV? But they both also pointed to a peculiar phenomenon that remains little understood: the rightwing use of public displays of white male emotionalism as a political tool.In one sense, the two men’s conduct under oath was quite strange. Both of them appear to be self-conscious avatars of white conservative masculinity, and their ideology would seem to preclude male emotionalism, as traditional gender norms have historically justified male dominance precisely because of men’s supposed stoicism and self-control. As Vox’s Jamil Smith put it: “We’re generally unfamiliar with seeing boys and men exhibit their emotion in such a public way. Vulnerability and common conceptions of manhood, especially among conservatives, have not traditionally been bedfellows.”And yet conservative white men’s emotions are increasingly coming to the forefront of political life, and they seem to animate much of the Trumpist right. In practice, such men express their emotions all the time. They express them at Trump rallies, when they jeer at the mention of perceived enemies and cheer for lines of chauvinism and anger. They express their feelings when they picket abortion clinics, screaming at women walking inside and threatening the staff. They express their feelings when they fly Confederate and “Blue Lives Matter” flags; they express their feelings when they vote, and when they pick petulant fights with the service workers who ask them to wear their masks inside stores and restaurants. The common thread in these rightwing expressions of masculine emotion is that when conservative men express their feelings, they don’t do so as a gesture of humility or need. Instead, they wield their feelings as a threat.Kyle Rittenhouse judge in spotlight after angry reprimand of prosecutionRead moreArguably, both Rittenhouse and Kavanaugh were expressing their emotions when they committed their famous acts of alleged violence. It’s impossible to know what was in his mind, but Rittenhouse’s actions leading up to that night in Kenosha indicate that what brought him there was anger, or maybe a desire for glory. Rittenhouse says that he came to Kenosha to protect local businesses from demonstrators; he had appointed himself a vigilante, out avenging the interests of property and police against the protests. It’s hard not to suspect that he daydreamed about himself as a lone wolf who doesn’t play by the rules, like an action movie hero who wears a bandana as a headband and a cutoff denim vest. The rifle that Rittenhouse used to kill Rosenbaum and Huber was illegal for him to possess. Asked why he didn’t use a handgun, he told the court that he had chosen the semiautomatic rifle because “it looked cool”.For Kavanaugh, the project of decoding his emotions the night he allegedly assaulted Christine Blasey Ford is also speculative, but Ford’s testimony, along with documents made public during the hearings, paints a portrait of Kavanaugh as a young man with a vivid, if not especially varied, emotional life. His calendar from what was probably the month of the party shows him working out and calling his football friends by nicknames; he goes to their houses for “’skis” (“brewskis”: beers). In Ford’s account, he sounded satisfied with himself. “Indelible in the hippocampus is the laughter,” she said. “The uproarious laughter between the two, and their having fun at my expense.” Kavanaugh was a boy, like Rittenhouse, with an inflated sense of his own importance. The emotion he seemed to have expressed most clearly in those years was a consuming and profoundly unearned sense of his own superiority.The fact of the matter is that for Rittenhouse, the question of emotion will be central to his case. The question of his legal guilt or innocence hangs on whether he felt endangered at the time of the shootings – a subjective experience that, conveniently, only Rittenhouse himself can speak to. Meanwhile, Kavanaugh now sits in a position of superlative power. Maybe the problem is not that these white men don’t express their feelings enough. Maybe the problem is that their feelings have too much power.
      Moira Donegan is a Guardian US columnist
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      ‘Catastrophic implications’: UN health expert condemns US over threat to abortion rights

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      Abortion‘Catastrophic implications’: UN health expert condemns US over threat to abortion rightsSpecial rapporteur Dr Tlaleng Mofokeng argues in brief filed in a US court that overturning abortion rights would violate international human rights treaties ratified by the US Jessica Glenza@JessicaGlenzaMon 8 Nov 2021 05.00 ESTLast modified on Mon 8 Nov 2021 12.50 ESTThe United Nations special rapporteur on the right to health has called on the US supreme court to uphold the right to abortion in America or risk undermining international human rights law and threatening that right elsewhere in the world.The special rapporteur, Dr Tlaleng Mofokeng, is one of just a handful of global observers whose mandate is to travel the world defending human rights.Mofokeng has argued in a brief filed in a US court that overturning abortion rights would violate international human rights treaties ratified by the US, including the convention against torture, should women be forced to carry pregnancies to term.In an interview, Mofokeng told the Guardian she could have filed a brief on abortion rights, “in any other court, in any other abortion case,” globally. However, she chose the US courts because of the direct threat posed to abortion rights in the supreme court’s upcoming session.“We have this joke among us that when the US sneezes the rest of the world catches a [cold],” said Mofokeng. “So we know that politically that what happens in the United States… does have an impact in precedents elsewhere in the world.”Mofokeng’s brief was filed ahead of oral arguments in Dobbs v Jackson Women’s Health Organization, a case advocates fear will undermine abortion rights nationally. Dobbs poses a direct threat to Roe v Wade, the landmark 1973 case that established a Constitutional right to abortion based in privacy.Roe invalidated dozens of state abortion bans and restrictions, and allowed people to terminate a pregnancy up to the point a fetus can survive outside the womb, generally understood to be about 24 weeks gestation. A full term pregnancy is 39 weeks.“If that gets overturned, it has catastrophic implications, not just for the US,” said Mofokeng, who said she feared overturning Roe would embolden global attacks on reproductive rights.Mofokeng is also a practicing doctor and well-known sex-positive author in South Africa. Most often, she goes by “Dr T”, an informal title which underscores the empathy in her academic analysis. Her most recent UN report outlined the challenges Covid-19 posed to reproductive rights, and how colonialism continues to affect global policies on reproduction, from sterilization to abortion bans.“It means that even those people who are conservative, who are anti-rights, in any country in the world, will actually now start referencing the US court as an example of jurisprudence that should be followed,” said Mofokeng. “And this is why this is so dangerous”.In Dobbs, the court will consider whether Mississippi can ban abortion at 15 weeks gestation. For the court to uphold Mississippi’s law, it would require the court to rewrite standards that determine whether abortion restrictions are constitutional. Advocates fear that could once again allow states to severely restrict or ban abortion.A majority of the court’s nine justices would need to agree to rewrite such standards. Conservative justices hold a 6-3 supermajority on the court. Many observers view the court’s decision to take the Mississippi case as an ominous sign. About six in 10 Americans believe abortion should be legal in “all or most cases”.“If Roe … [were] overturned, many US states will implement bans or near-bans on abortion access that will make individual state laws irreconcilable with international human rights law,” the brief argued. “This would cause irreparable harm to women and girls in violation of the United States’ obligations under the human rights treaties it has signed and ratified.”While the US has not ratified several United Nations treaties, it has ratified the convention against torture, which Mofokeng’s brief argued would be violated if states were allowed to ban abortion.“The denial of safe abortions and subjecting women and girls to humiliating and judgmental attitudes in such contexts of extreme vulnerability and where timely health care is essential amount to torture or ill treatment,” Mofokeng’s brief said, citing a 2016 report by the rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.Conversely, Mofokeng’s brief argued, contrary to Mississippi’s assertions, that “the right to life emanating from human rights treaties does not apply prenatally,” and that the “overwhelming trend for the past half-century has been toward the liberalization of abortion laws worldwide”.Further, since the court has accepted the Dobbs case, it also allowed a six-week abortion ban to go into effect in Texas in September, effectively allowing the nation’s second largest state to nullify Roe within its borders. Experts estimate that if Roe were overturned, roughly two dozen US states mostly in the south and midwest would immediately ban abortion.Such bans would have immediate and direct consequences for women and people seeking abortions.In one recent analysis, the Guttmacher Institute found 26 states are certain or likely to outlaw abortion should Roe be overturned. In just one example, that would require a woman seeking a legal abortion in Louisiana to travel to Kansas to access care.“The rise in global anti-gender and anti-women’s rights is such that people will grasp at anything that seems to make their case solid,” said Mofokeng. And, she said, the case before the supreme court now relies on “non-medical, non-scientific” misinformation.“It means we have a risk of now having global jurisprudence – or at least influences in the global world – using jurisprudence that’s ill-informed. And that’s very dangerous,” said Mofokeng. “To undo the court’s decisions takes decades, sometimes a lifetime – and that’s why it’s dangerous.”TopicsAbortionUnited NationsHealthUS politicsUS supreme courtfeaturesReuse this content More

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      Misfire review: a bullseye from Tim Mak – but the NRA isn’t beaten yet

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      BooksMisfire review: a bullseye from Tim Mak – but the NRA isn’t beaten yet The NPR reporter has written an important book about the moral bankruptcy which put the powerful and merciless gun group on the back footCharles KaiserSat 6 Nov 2021 02.00 EDTLast modified on Sat 6 Nov 2021 02.02 EDTTim Mak has written a sprawling tale of the greed, incompetence and narcissism which has dominated the National Rifle Association throughout Wayne LaPierre’s 30 years as its leader. Abetted by his wife, Susan, LaPierre has allegedly used his members’ dues to fund a billionaire’s lifestyle.‘We have to break through that wall’: inside America’s battle for gun controlRead moreThe LaPierres’ wedding in 1998 was a near miss: he almost ran from the altar, until she and the priest changed his mind. Mak calls this “emblematic” of “a man driven by fear and anxiety over all other forces … his reaction to these emotions is usually to flee and hide”.These qualities, Mak writes, have made LaPierre “prey” to an endless series of conmen, throughout his leadership of America’s most-feared lobbying group.“Pushed and prodded” by his wife to discover “money’s alluring glow”, Mak writes, LaPierre saw his salary balloon from $200,000 in the mid-1990s to $2.2m in 2018. According to the investigation of the New York attorney general, which has done the most to expose serial excesses at the NRA, between 2013 and 2017 the black cars, private jets and hundreds of thousands of dollars of expensive clothing led to $1.2m in reimbursed expenses.Between 2013 and 2018, companies used to book the LaPierres’ private planes received an astonishing $13.5m. There were trips to Lake Como, Budapest and the Bahamas. Just the hired cars for trips to Italy and Hungary cost $18,000. LaPierre spent $275,000 on suits at a single Beverly Hills emporium, including $39,000 on one day in 2015. To disguise such excesses, the bills were sent to an outside vendor which the NRA reimbursed.Mak also does a good job of describing how every mass shooting has pushed the NRA ever further right, transforming it from advocacy group for gun rights into a fully fledged player in the culture war, especially after the massacre of 20 young children and six adults at Sandy Hook Elementary School in Connecticut in December 2012.Mak offers a particularly depressing account of how the NRA chief lobbyist, Chris Cox, was personally involved in negotiations over the Manchin-Toomey bill, a Senate measure which would have modestly increased background checks if, as Mak points out, not enough to have prevented the Sandy Hook massacre, since that gunman used guns legally obtained by his mother.In any case, after months of negotiation the NRA double-crossed both sponsors, made sure the bill failed to get the 60 votes it needed to pass the Senate, then dropped its A-ratings for Manchin and Toomey to D and C respectively.The NRA’s role in the Trump-Russia scandal was substantial. Maria Butina, eventually convicted as a Russian spy, used “relationships within the NRA to build an informal channel of diplomatic relations with Russia”. Her efforts included a famous public exchange with Donald Trump during his first campaign, in which he expressed his affection for Vladimir Putin and promised to improve relations as president.The NRA spent $30m to help to elect Trump, more than his own fundraising super pac. Ironically, NRA membership dues fell after Trump entered the White House. The organization lost its most lucrative fundraiser when Barack Obama left office.Power struggles and a ‘personal piggy bank’: what the NRA lawsuit allegesRead moreThe great unravelling began on 6 August 2020, when the New York attorney general, Letitia James, filed a lawsuit to dissolve the NRA entirely. She accused LaPierre of using the organization for 30 years “for his financial benefit, and the benefit of a close circle of NRA staff, board members, and vendors”.Six months later, the NRA filed for bankruptcy. But despite endless infighting, Wayne LaPierre remains in charge. And because Trump was elected, with the NRA’s help, the supreme court now includes three justices appointed by him – at least two of whom seemed eager in arguments this week to demolish most of the remaining state restrictions on carrying concealed weapons, in New York and six other states.The passions of gun owners – and the fear they have instilled in a majority of public officials – remain dominant forces in American politics despite the greed and incompetence of their leaders chronicled so thoroughly in this important book.
      Misfire is published in the US by Dutton
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      Trump’s judges will call the shots for years to come. The judicial system is broken | Shira A Scheindlin

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      OpinionUS politicsTrump’s judges will call the shots for years to come. The judicial system is brokenShira A ScheindlinIn just one term, Trump was able to appoint 33% of US supreme court justices and 30% of US appellate judges. They’ll serve for life Mon 25 Oct 2021 06.15 EDTLast modified on Mon 25 Oct 2021 14.44 EDTFor many Americans, Donald Trump will be remembered as the first US president to be twice impeached, to have supported, or even incited, an insurrection against democracy, and for allowing thousands to die due to his abject failure to lead the nation in fighting the Covid-19 pandemic. But for many other Americans, his true legacy will be his enduring impact on the third branch – the federal judiciary.Americans don’t have faith in the US supreme court any more. That has justices worried | Russ FeingoldRead moreThe expansion of executive power, and the diminishment of legislative power due to partisan gridlock, is a well-known story. Governing by executive order has become the new normal. But it is the stealthy and steady rise of the power of the judicial branch that has caught many Americans off-guard.Federal judges have life tenure. Once they are appointed they remain in office until they retire or die. The president appoints every federal judge and these appointments have very long-term consequences. A look at Trump’s record of appointments reveals a relentless commitment to cementing his peculiar and idiosyncratic ideology. In short, he and his sidekick, former majority leader Mitch McConnell, did all they could to entrench an actively conservative judiciary.The numbers tell a clear story. There are a total of 816 active federal judges comprising the supreme court, the 13 appellate courts, and 91 district courts. In just one term Trump was able to appoint 28% of those judges due to past and continuing vacancies. Most importantly, he appointed 33% of America’s nine supreme court justices and 30% of the appellate judges. The vast majority of his appointments were white males – not one of his 54 appellate judges is Black. But what really stands out is the age of his appointees. The average age of his appellate judges was 47 (five years younger than those selected by Barack Obama). Six of those were in their 30s, and 20 were under 45. By contrast, of the 55 appellate judges picked by Obama – in eight years, not four – none were in their 30s and only six were younger than 45.Trump’s judicial appointments will shape American jurisprudence for decades to come. The Federal Judicial Center has found that this age disparity means that Trump judges will serve 270 more years than Obama’s judges, and they will decide thousands more cases. Moreover, the average tenure for a supreme court justice has increased from 15 years in the early 1970s to 27 years in more recent years, due in large part to the younger age of the justices at the date of appointment.The Trump legacy of judicial appointments is most apparent in the recent behavior of the supreme court. A new term has been coined – the shadow docket – which refers to the sudden uptick in emergency requests filed by the government. In the 16 years preceding the Trump presidency only eight such requests were filed, and, of those, only four were granted. By contrast, during Trump’s four-year term, 41 such applications were made, of which 24 were granted – a 70% success rate that supported Trump’s policies. These cases are heard without full briefing, without oral argument, and often result in a single-sentence order as opposed to a full reasoned opinion.One such decision overturned, by a 5-4 order, a Wisconsin trial court order allowing an extension for the receipt of absentee ballots. The last-minute supreme court decision issued the day before the election caused chaos and confusion. A second example of how the now safely pro-Trump court supported his policies involved his administration’s rule prohibiting migrants from seeking asylum in the US before seeking it in the countries through which they had travelled. The lower court suspended enforcement of this unprecedented rule, but the supreme court allowed the ban to take effect immediately even as the case proceeded through the lower courts. Another particularly disturbing example involved four death penalty cases where a lower court halted four executions because the use of pentobarbital to kill the prisoners would constitute cruel and unusual punishment. In a 5-4 ruling, issued after 2am, the stay was overturned and at least one of the executions carried out – the first federal prisoner to be executed in 17 years.Most recently, in yet another emergency appeal, the supreme court by a 5-4 margin, refused to block the newly enacted Texas law banning abortion after six weeks of pregnancy, allowing that rule to be enforced for the foreseeable future. This emergency request was brought by abortion providers after the very conservative fifth circuit court of appeals, to which Trump had appointed six judges, stopped the trial court from holding a hearing as to whether the new law could take immediate effect. A month later a trial judge blocked the law from taking effect and the fifth circuit promptly reversed. The Department of Justice is now appealing that decision to the supreme court.In each of these cases, the supreme court deprived the affected parties of a chance to be fully heard and often deprived the appellate courts of the chance to review the ruling of the trial courts. This unprecedented haste, and acquiescence to the importuning of the executive branch, gave the appearance that the supreme court was no longer an independent and co-equal branch of government but rather a partner of the Trump-led executive branch.Many Americans now question the court’s integrity and are jumping on the bandwagon of seeking supreme court reform. Proposals for reform include imposing term limits on supreme court justices to ensure that no one justice or group of justices controls the outcome of cases for decades to come. It is noteworthy that the three justices Trump appointed were 48, 49 and 53 at the time they joined the court, guaranteeing decades of influence by those justices. A variation on this proposal would require mandatory retirement by all federal judges at the age of 70 or 75.Another more controversial proposal is to expand the court. This proposal is, in part, a response to the widespread belief that two of President Obama’s appointments were stolen. The first was the vacancy caused by the death of Antonin Scalia. Obama’s nominee to fill that seat was stonewalled by Republicans for 10 months, purportedly due to the proximity to the upcoming presidential election, while the second was the record-breaking speedy confirmation of Amy Coney Barrett just days before a presidential election.Other proposals include reform of the shadow docket by requiring briefing, argument, and a reasoned opinion on all emergency matters; imposing a code of conduct and ethics on supreme court justices similar to that binding lower court judges; requiring a 6-3 super-majority before finding a federal statute unconstitutional; and requiring that Congress consider any presidential nomination within a fixed period of time – perhaps 45 days after nomination.The growing support for some or all of these reforms by many non-partisan organizations, academics, and Democratic politicians, is a response to the discontent created by Trump’s unprecedented manipulation of the appointment process for federal judges, designed to ensure that his politics and policies will control the lives of future generations. Trump’s brazen capture of the supreme court, engineered with the help of the Republican Senate majority, requires a bold response. If reform efforts fail, which is likely given the arcane Senate rules, Trump will have succeeded in entrenching his regressive, if not destructive, political agenda. This may be good for Trump’s legacy but it is surely bad for the country.
      Shira A Scheindlin is a former United States district judge for the southern district of New York. She is the co-chair of the board of the Lawyers Committee for Civil Rights Under Law and a board member of the American Constitution Society
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