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US politicsDemocrats position themselves as last line of defense for abortion rights Party sees new urgency – and political opportunity – amid growing threat to Roe v Wade
Opinion: In Texas, flustered ‘pro-lifers’ are backpedaling
Lauren Gambino in Washington DC@ More
OpinionUS politicsTo protect the supreme court’s legitimacy, a conservative justice should step downLawrence DouglasIf presidents do not get to replace justices in an election year, then Coney Barrett’s confirmation is illegitimate; if presidents do, then Gorsuch’s is illegitimate. You can’t have it both ways Tue 21 Sep 2021 06.15 EDTLast modified on Tue 21 Sep 2021 06.19 EDTIn Planned Parenthood v Casey, a landmark decision from 1992, the US supreme court memorably noted that its “power lies … in its legitimacy”. If the people come to question the court’s legitimacy, they will cease to accept the “the Judiciary as fit to determine what the Nation’s law means and to declare what it demands”.It appears that Justices Clarence Thomas and Amy Coney Barrett share these worries. In separate remarks this month, both justices sought to assure the public that, in Coney Barrett’s words, “this court is not comprised of a bunch of partisan hacks”. Thomas said much the same, seeking to disabuse his listeners of the belief that justices “are just always going right to [their] personal preference”.Triggering the justices’ concerns was the withering criticism that has been directed at the court’s recent decision to leave in place, at least for now, a Texas law that turns ordinary citizens into de facto bounty hunters empowered to sue anyone who performs or “aids and abets” an abortion for a woman past her sixth week of pregnancy. The Texas law cannot be squared with the court’s ruling in Planned Parenthood, which recognized that a “woman’s right to terminate her pregnancy before viability … is a rule of law and a component of liberty we cannot renounce”. To renounce that principle, the court warned, would cause “profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law”. But that is precisely what the court did in letting Texas’s transparently unconstitutional law take legal effect.But far from recognizing or examining their own role in contributing to the erosion of the court’s legitimacy, the two justices turned to other precincts to assign blame. It’s the media, Thomas whined, that are “destroying our institutions” – this from a justice who dissented from the court’s refusal to hear Trump’s challenge to a Pennsylvania state court decision that extended the deadline for the receipt of mail-in ballots by three days. Thomas acknowledged that the volume of mail-ins at stake had no material bearing on the outcome of the Pennsylvania race; all the same, he was prepared – in a stunning display of either partisanship or tone-deafness – to have the supreme court, scant weeks after the 6 January insurrection, offer tacit support to Trump’s attack on the 2020 election results. And, in now blaming the media for the court’s self-inflicted wounds, Thomas is effectively echoing Trump’s toxic rhetoric about “fake news”. Who is the institution-destroyer here?Alas, Justice Coney Barrett joined Thomas in attacking the press. The media, she charged, makes decisions such as the Texas case “seem results-oriented”. It is worth noting that the justice made her remarks at the McConnell Center at the University of Louisville, with Senator Mitch McConnell, the center’s namesake, in attendance. It was McConnell, of course, who in the wake of Ruth Bader Ginsburg’s death six weeks before the 2020 election, pushed through Coney Barrett’s nomination, in transparent violation of the very justification he had offered four years earlier to deny President Obama the right to name a justice to fill a court vacancy that ultimately went to Neil Gorsuch. That McConnell’s cynical manipulation of the rules was designed to compose a court that would produce dependably conservative results appears lost on Coney Barrett. Indeed, it was her vote that was determinative in the Texas case. Had Ginsburg still been on the court, the decision would have gone 5-4 the other way. McConnell secured the results he wanted.If Coney Barrett were genuinely concerned with promoting the court’s legitimacy, she might consider resigning. Or rather, she and Gorsuch might agree to flip a coin to decide who should leave the court. If presidents do not get to replace justices in an election year, then Coney Barrett’s confirmation is illegitimate; and if presidents do get to replace, then Gorsuch’s confirmation must be illegitimate. You can’t have it both ways – not if you believe that the composition of the court should be the product of a principled process.Coney Barrett appears to willfully overlook the fact that she has been elevated to a rarefied position through a tarnished process that will taint all decisions in which her vote plays a crucial role. And just as we might hope that a person who, through no fault of their own, has come into possession of a good not rightfully theirs, would return that object, Coney Barrett and Gorsuch could do the right thing for the nation by agreeing that one of them should step down.Clearly, this isn’t going to happen. Yet it would powerfully bolster the legitimacy of a court the very composition of which smacks of illegitimacy.
Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College
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AbortionTexas doctor protests abortion law by admitting he carried out procedure
Alan Braid writes column for Washington Post
Texas law shows fragility of women’s rights, say activists
Martin Pengelly in New York@ More
Clarence ThomasClarence Thomas insists supreme court justices do not rule based on politicsCourt’s sole African American joins fellow conservative Amy Coney Barrett in denying personal political bias in judgments
Opinion: the supreme court aren’t ‘partisan hacks’. Oh really?
Martin Pengelly in New York@ More
OpinionUS politicsAmy Coney Barrett says the supreme court aren’t ‘partisan hacks’. Oh really?David SirotaNever mind the court’s wildly rightwing bent and secretive ‘shadow docket’ – or Barrett’s refusal to recuse herself from a case involving a fossil fuel giant that employed her father Wed 15 Sep 2021 06.19 EDTLast modified on Wed 15 Sep 2021 12.47 EDTWar is peace, freedom is slavery, and the supreme court is a dispassionate nonpartisan branch of government free of bias – this is the Orwellian fable that Justice Amy Coney Barrett is now asking Americans to believe.And Barrett is asking us to believe it not merely after the court’s wildly partisan ruling on abortion rights, but also just months after she promoted climate denialism to a national audience and refused to recuse herself as she helped secure a legal victory for the fossil fuel giant that employed her father for decades.This is a tale not just of cartoonish hypocrisy but also of deception – a frantic attempt to prevent more of the country from realizing the court is a corporate star chamber that has become one of the most powerful partisan weapons in American politics.First, the blatant hypocrisy: in an event that seems torn out of the pages of the Onion, Barrett this weekend appeared with the Senate’s Republican minority leader Mitch McConnell at a celebration of a University of Louisville facility he named after himself. After she was introduced by the most partisan Senate leader in American history, Barrett declared that the supreme court – which now includes three people who worked directly on the Republican campaign to pilfer the 2000 election – “is not comprised of a bunch of partisan hacks”.If that wasn’t absurd enough, Barrett then declared that judges must be “hyper vigilant to make sure they’re not letting personal biases creep into their decisions, since judges are people, too”.That demand for ethical vigilance came less than four months after Barrett discarded her own past recusal list and opted to participate in the adjudication of a major climate case against Shell Oil – the fossil fuel giant that employed her father for nearly three decades. Barrett declined to recuse herself even though an amicus brief was filed in the case by the American Petroleum Institute, the lobbying group that her father helped steer – and even though one prominent supporter of the case said her father could be subpoenaed for a deposition because of his potential “direct knowledge of and operational involvement in how Shell managed climate threats”.But no recusal came – and, with Barrett’s help, the supreme court sided with Shell and other fossil fuel giants, delivering a big procedural win for the oil and gas industry.Barrett’s participation in that case followed her Senate confirmation hearing, in which she refused to acknowledge the undisputed science of climate change (and in which flaccid Democrats decided not to bother to push her on recusal). She cast her position as an attempt to avoid being opinionated about the matter, but of course refusing to stipulate basic scientific fact is the opposite of dispassionate. It is an ideological and partisan expression of Republican orthodoxy wholly disconnected from empirical data.And in case you thought Barrett’s zealotry, hypocrisy and conflicts of interest are germane only to one isolated case, remember that in the coming years, the fossil fuel industry will almost certainly ask the high court to shield it from legal consequences for its climate crimes.Barrett’s motives here, though, are not just about war-is-peace-ing her way through her own ridiculously obvious conflicts of interest. She is also trying to preserve the image of the court as a transcendent fount of apolitical morality at a time when more and more Americans may be finally – belatedly – realizing that the panel is, in fact, made up of hacks.As the Daily Poster has been reporting for quite a while, the panel has become the most conservative supreme court in modern history. This is a group of judges who now loyally rubber-stamp legal requests from the US Chamber of Commerce and other corporate groups bankrolling the politicians and the nomination campaigns that install rightwing appointees on the court. The justices have become so politically brazen that they now quietly issue landmark rulings in total secrecy through a so-called shadow docket.Despite this, corporate media has typically portrayed the court as a moderating force above politics, and even putatively liberal or centrist pundits have periodically touted some of the most rightwing justices.This propaganda campaign has worked – even as the court exacerbates the climate crisis, restricts abortion rights, tramples voting rights and issues ever-more-extreme rulings helping corporations crush workers, nearly two-thirds of Americans say they approve of the court’s work, according to the latest survey.However, that’s down a sizable six points since last year – which suggests that more of the country is beginning to realize that a fetid form of corporatism and partisanship is quietly rotting the judiciary from within.Barrett rightly senses that this realization threatens the perceived legitimacy of the justice system, and therefore could create momentum for real reform – whether it means term limits for supreme court judges or an expansion of the court.Any of those reforms are a threat to her power, and the power of all the corporate forces that bought high-court jobs for rightwing justices. So she’s trying to do whatever she can to prevent America from understanding how nefarious the upreme court has become.That’s what her speech was really all about – and we shouldn’t be fooled. We should be emboldened behind the cause of finally fixing a star chamber that is causing so much harm throughout the country and the world.
David Sirota is a Guardian US columnist and an investigative journalist. He is an editor at large at Jacobin and the founder of the Daily Poster. He served as Bernie Sanders’ presidential campaign speechwriter
This article was originally published in the Daily Poster, a grassroots-funded investigative news outlet
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TexasUN experts condemn Texas abortion law as sex discrimination ‘at its worst’Exclusive: human rights lawyer criticizes the supreme court and says new law will ‘make abortion unsafe and deadly’ Ed Pilkington in New York@ More
OpinionUS politicsPresident Biden: Texas shows we can’t wait any longer. It’s time to pack the courtLawrence DouglasRemember when Mitch McConnell twice invoked entirely made-up rules to politically shape the court’s membership? Expanding the court will make it more legitimate, not less Mon 6 Sep 2021 06.16 EDTLast modified on Mon 6 Sep 2021 14.47 EDTWilliam Brennan, the great US supreme court justice, liked to greet his incoming law clerks with a bracingly simple definition of constitutional doctrine: five votes. “You can’t do anything around here,” Brennan would say, wiggling the fingers of his hand, “without five votes.”Underscoring the truth of Brennan’s hardboiled definition was the court’s 5-4 ruling this week (with Chief Justice John Roberts in dissent alongside his three liberal colleagues) to let stand a Texas law that turns ordinary citizens into de facto bounty hunters empowered to sue anyone who performs or “aids and abets” an abortion on a woman past her sixth week of pregnancy. True, the single-paragraph unsigned majority opinion emphasized that in letting the Texas law take effect the court was not ruling on the statute’s ultimate constitutionality.Texas now has abortion ‘bounty hunters’: Sonia Sotomayor’s scathing legal dissentRead moreAnd yet. As Justice Sonia Sotomayor wrote in a passionate dissent, “Presented with an application to enjoin a flagrantly unconstitutional law … a majority of justices have opted to bury their heads in the sand.” President Biden powerfully joined those critical of the court’s decision. Declaring that the ruling promises to “unleash [..] unconstitutional chaos”, Biden promised to work to protect the constitutional right to abortion first recognized in Roe v Wade.How might the president do so? Back in April, Biden empaneled a bipartisan commission of scholars, lawyers and jurists tasked with exploring the issue of “court packing”. The commission is scheduled to submit its report later this fall, which returns us to Justice Brennan’s five wiggling fingers.There is nothing magical about the number nine, the present size of the supreme court. The constitution provides that there shall be “one supreme Court”, but says nothing about the court’s size or composition; these are matters left to Congress. In the early decades of the nation, Congress changed the number of justices six different times, from as few as five to as many as 10, before settling on nine in 1869. In 1937, Franklin Roosevelt, frustrated by a reactionary supreme court that resisted his New Deal initiatives, proposed expanding the supreme court’s bench to 15. Congress correctly rejected that court-packing plan as an attempt to manipulate the court to generate specific outcomes.Biden, however, could now fairly and legitimately propose expanding the number of justices from nine to 11. Such an expansion would counterbalance the abuse of constitutional rules that enabled the confirmation of Neil Gorsuch and Amy Coney Barrett and the installation of the hardcore conservative bloc responsible for the Texas decision.This is not to say the effort would be successful. Assuming Biden could find support in the House, expanding the number of justices would require Democratic senators to first eliminate the filibuster, something that Senators Joe Manchin and Kyrsten Sinema staunchly oppose. And we know that Republican lawmakers, led by Mitch McConnell, would accuse Biden of dangerously politicizing the court.To which we may respond: pah-leeze. After all, it was McConnell who, in the wake of Antonin Scalia’s death nine months before the 2016 election, announced: “The American people should have a voice in the selection of their next supreme court justice. Therefore, this vacancy should not be filled until we have a new president.”Armed with a rule of his own creation and a Republican Senate majority, McConnell flagrantly refused to grant a hearing to Merrick Garland, Barack Obama’s nominee to fill the supreme court vacancy ultimately filled by Trump’s choice, Neil Gorsuch.But when Ruth Bader Ginsburg died, six weeks before the 2020 election, McConnell suddenly pronounced a new rule. It turns out the American people should not have a voice in the selection of supreme court justice in an election year when the incumbent president is a Republican.The confirmation of Amy Coney Barrett did more than install a supermajority of conservatives in the court. The locus of power on the court shifted from the more mainstream conservatism of Justice Roberts to the more ideological and rigid extremes of Clarence Thomas and Samuel Alito.As the Texas ruling underscored, this is a court far more conservative than the nation whose constitutional meanings it is meant to protect. And it is a court that owes its composition to the triumph of anti-democratic processes, in which a majority of its members were nominated by a president who lost the popular vote and/or were confirmed by a bloc of senators elected by a minority of voters.In proposing the addition of two additional justices, Biden could hardly be charged with tit-for-tat politics or with further politicizing the court. Conservatives would continue to enjoy a 6-5 majority, but with Justice Roberts, a stalwart institutionalist, serving as the swing vote. Were Biden to succeed, such an expansion would make the court more legitimate, not less.
Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020 and is also a contributing opinion writer for the Guardian US. He teaches at Amherst College
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