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      The US supreme court may soon become plutocracy's greatest defender | David Sirota

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      If you get your news from the political press and television ads, you might think the US supreme court is a forum that only adjudicates disputes over the most hot-button religious and civil rights issues. What you would not know is that while the court does periodically rule on those important matters, it spends as much or more of its time using business-related cases to help billionaires and corporations rig the economy against ordinary Americans.In light of that, Amy Coney Barrett’s US supreme court nomination must be understood as the culmination of cynical tactics that Republicans have perfected over the last two decades. The strategy is straightforward: they nominate plutocrat-compliant judges knowing that the corporate-owned media and political system will make sure confirmation battles focus on partisan wrangling and high-profile social issues – but not also on the economic issues that justices often decide.In other words: Republican politicians rely on conflagrations over political process and social issues to mobilize their religious base in service of Republican donors’ real objective – smuggling corporate cronies on to the highest court in the land. And if Barrett is confirmed, those Republican donors will not just get another business-friendly judge – in advance of the 2020 election, they will also get a third justice who worked directly on the legal team that convinced the US supreme court to hand Republicans the presidency in 2000.To be sure, Barrett’s record on social issues is extreme and worthy of scrutiny, criticism and organized opposition, especially at a time when crucial precedents may be on the line. She signed an ad criticizing Roe v Wade and she has suggested that a more conservative court could accept state restrictions on abortion clinics. As a judge, she has also written dissenting opinions against limits on gun rights and in favor of a Trump administration rule to try to make it harder for low-income immigrants to enter the United States.Those issues, however, are almost certainly not what is motivating big donors to funnel millions of dollars into groups like the Judicial Crisis Network, the oil magnate Charles Koch’s network and the US Chamber of Commerce in support of Barrett’s nomination. Those groups’ ads and lobbying campaigns may try to focus the public debate on religion and court precedent, but such enormous sums of cash flood into judicial campaigns with one underlying goal: enriching the corporations and plutocrats that are making the donations.These organizations know the supreme court is the place to do exactly that – and they have been wildly successful in stacking the court since 2005.That was the year that business interests engineered John Roberts’ ascension to supreme court chief justice. Back then, corporate groups launched what was their first sophisticated public campaign to install a new jurist on the court – and Roberts was the perfect pick. He had advised the Bush 2000 legal team, he represented corporate clients in private practice and he was considered “the go-to lawyer for the business community”.Roberts’ business fealty was not the focus of his court confirmation hearings – and that omission is now standard practice. Indeed, other than the brief controversy over Neil Gorsuch’s ruling in a workers’ rights case, recent confirmation battles have rarely ever homed in on nominees’ views on corporate power.And yet, the Roberts court has been defined by its allegiance to big business. According to the Constitutional Accountability Center, 70% of the Roberts court’s rulings in business cases have sided with the US Chamber – the pre-eminent business lobby group in Washington. That is the highest rate of corporate loyalty of any supreme court in 40 years, and it is a bipartisan affair: Republican-appointed judges are almost always siding with business interests, and in roughly half the cases, Democratic-appointed justices have been with them, too. More

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      The Trump-Biden debate revealed the dangers of Britain's 'special relationship' | Martin Kettle

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      Ever since the pioneering Kennedy-Nixon encounter in 1960, the questions that political journalists pose after US presidential debates have been the same. Who performed best? Who had the better of this or that part of the argument? Who exceeded expectations or fell short? Who had the best lines and delivered the best zinger? And has any of it changed the election odds?They are still being asked after the first televised match-up between Donald Trump and Joe Biden. With five weeks to go before the US votes, the questions still matter. But after Tuesday’s verbal roughhouse they also feel crowded out by other uncertainties that seem more epochal, more dystopian and more pressing, not least when seen from this side of the Atlantic.It can seem overblown, but it now makes sense to ask if America is on the edge of becoming ungovernable, or if the rule of impartial law enforcement still commands respect. It is also possible, in ways that were not true in the past, to consider whether the US can be relied on internationally, and whether it is realistic to continue to regard it as an ally. But if it is not an ally, what follows from that? The answers are increasingly uncomfortable.Perhaps most potently, it has to be asked whether America, with all its fabulous energy, wealth, liberty and ambition, still offers the inspirational model to the world that it did to so many, for so long. Or instead is today’s America, defined increasingly by its inequalities, violence, fundamentalism and racism, becoming a model to be rejected, to be guarded against and even, in some cases, to be resisted?Sober answers to these questions matter to the whole planet, above all because of climate change and amid the coronavirus pandemic. But they matter to Britain in very particular ways too. The UK’s claim to a special relationship with the United States has been the cornerstone of its view of itself in the world ever since 1945. A deference to, and infatuation with, America also runs deep in our culture. But if the US is changing in an increasingly dangerous fashion, where does that leave that foreign policy or that infatuation?Britain has a lot riding on getting the answer right. Coming at precisely the time when the UK is casting off its alliance with its own continent, the issue has special urgency. Back in 2016, when Britain voted to leave the European Union, the allure of the exit for many leavers rested partly on the apparent dependability of the transatlantic alliance. But that was pre-Trump. America is a different place and becoming more so. Even leavers should sometimes ask what exactly this wheel of fire is on to which they are binding themselves.Fundamentally, the credibility of any alliance, whether with Europe, the US or anyone else, rests on material self-interest over things such as trade and security. But these material issues are also oiled by common values and trust, without which the relationship remains brittle and pragmatic. The bigger ally will always call the shots. And Britain is not the bigger ally.Few of these values matter as much as respect for the rule of law. It is not difficult to list ways in which this has been undermined by Trump’s America. The list would include everything from the president’s tax returns to breaches of international treaties. The danger for Britain is that, in defence of its unequal alliance, it is beginning to follow the US down the same route of playing fast and loose with the law for political reasons.Take one hugely significant example. Trump and the Republican senate leadership are trying to install the conservative judge Amy Coney Barrett in place of the liberal Ruth Bader Ginsburg in the US supreme court before the presidential election on 3 November. This is a wholly political act. But it is not new. It is merely a particularly shameless step in a long history of politically shaped justice in the US.In the long term, the Barrett nomination is aimed at creating a conservative 6-3 majority in the court, which may then start to undo abortion and other civil rights. But the overriding and immediate purpose is to construct a court that may rule on the result of the November election itself. If that were to happen, and if the court awarded the disputed election to Trump, the politicisation of American justice would be complete.In Britain, judges are still selected on the basis of their legal qualifications, not their politics. Even if you know the identity of the current UK supreme court president, which most people will not, it is a fair bet that you don’t know whether Lord Reed can be classified as a liberal jurist or a conservative one. We are better off as a country for that. Judges should neither be cult figures, as Ginsburg became for some American liberals; or hate figures, as she was for conservatives.Seen against the backdrop of a divided America facing the Barrett nomination, Britain’s institutions may still seem gratifyingly independent and resilient. But for how long? The Johnson government’s purge of senior civil servants, and its plan to install conservative ideologues to govern the BBC and the independent regulators, are a declaration of war on pluralism and independence. If the United States continues its slide into culture wars and worse, the task of stopping this from dragging Britain down too will become increasingly urgent.•Martin Kettle is a Guardian columnist More

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      Conservatives' assault on the supreme court is a judicial tragedy in the making | Shira A Scheindlin

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      On Saturday, Donald Trump nominated Amy Coney Barrett to become an associate justice of the supreme court, to fill the seat vacated by the death of Ruth Bader Ginsburg. In one stroke he violated long-held precedents regarding filling supreme court vacancies, undermined the confidence of the American people in the legitimacy of the court, and ensured that the court will turn back decades of progress in civil rights.This nomination is unprecedented. No justice has been confirmed to a seat on the court during an election year when a vacancy occurred after June. Yet when a vacancy occurred in February 2016 – an election year – the Republican majority in the Senate refused to even consider Barack Obama’s March nomination of Merrick Garland. In fact, when Antonin Scalia died, Obama waited a month to make a nomination out of respect for the mourning process. This time, Trump announced within a day of Ginsburg’s death that he would fill the seat immediately and then made his nomination just a week later.In a naked acknowledgment of his true motivation, Trump recently said that the country needs a ninth justice because the pending election could well end up before the court and a 4-4 court would be a bad thing. Yet, in 2016, the Republicans were content with a 4-4 court with an election around the corner. Indeed, Republicans threatened that if Hillary Clinton won the election, no new justice would be confirmed, leaving the court with only eight justices throughout her term.This election is already in progress with thousands (and soon millions) of Americans voting during what will inevitably be a highly contentious confirmation process. This process will inevitably affect the election and thereby politicize the supreme court as never before. The political branches of our government – the executive and legislative branches – are elected by voters; the court, on the other hand, is supposed to be non-partisan. While appointed by the president and confirmed by Congress, the justices are not beholden to any political party but rather to the rule of law.This is no longer the case. Public confidence and public perception that the courts are non-partisan has eroded. The Republican boycott of Garland, together with Trump’s unprecedented nomination of Barrett and her likely confirmation, will seal the Republican theft of two supreme court seats, at least in the eyes of more than half the electorate, and will ensure conservative control of the court for decades to come.If Barrett’s record is any indication, the court will soon turn its back on its most treasured precedents and turn America into a more regressive country. Before joining the bench just three years ago, she served as a law clerk to Scalia, whose judicial philosophy she has fully embraced. She has also been a longtime member of the rightwing Federalist Society.Public confidence and public perception that the courts are non-partisan has erodedHer short judicial record, together with her scholarly writings, reveal that she is a rock-solid conservative jurist. Like Scalia, she defines herself as an originalist and textualist, which means that the constitution must be viewed as of the time it was written. From that perspective, there is nothing in the constitution that would explicitly support abortion rights, gay marriage, mandatory school desegregation, or the right to suppress evidence that is illegally seized. By contrast, in one of her most famous opinions, United States v Virginia (1996), Ginsburg wrote that “a prime part of the history of our constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded.”In a 2013 article, Barrett repeatedly expressed the view that the supreme court had created, through judicial fiat, a framework of abortion on demand that ignited a national controversy. In an opinion she joined with another judge, she expressed doubt that a law preventing parents from terminating a pregnancy because they did not want a child of a particular sex or one with a disability could be unconstitutional. These writings surely indicate that Barrett will do whatever she can to limit or eliminate abortion rights.Barrett has also expressed dissatisfaction with the Affordable Care Act and support for a broad interpretation of the second amendment. She has written that Chief Justice John Roberts “pushed the Affordable Care Act beyond its plausible meaning”. She also quoted Scalia, when he wrote that “the statute known as Obamacare should be renamed ‘Scotuscare’” in “honor of the court’s willingness to ‘rewrite’ the statute in order to keep it afloat”. There is little doubt that Barrett would be inclined to find the Affordable Care Act unconstitutional and thereby deprive millions of Americans of affordable healthcare coverage. Similarly, she wrote a dissenting opinion questioning the constitutionality of a statute that prohibited ex-felons from purchasing guns. Thus, she has demonstrated her fealty to the NRA position that the more guns the better – inevitably leading to more Americans dying from gun violence.When addressing the legal doctrine known as stare decisis, meaning respect for precedent, Barrett wrote that she “tend[ed] to agree with those who say that a justice’s duty is to the constitution and that it is thus more legitimate for her to enforce her best understanding of the constitution rather than a precedent she thinks is clearly in conflict with it”. In other words, she would overturn landmark decisions such as Brown v Board of Education or Roe v Wade if those decisions did not reflect her best understanding of the constitution.Stunningly, in an interview in 2016, when asked whether Congress should confirm Obama’s nominee during an election year, Barrett responded that confirmation should wait until after the election because an immediate replacement would “dramatically flip the balance of power”. Given that answer, she should decline the nomination, as her confirmation would even more dramatically flip the balance of the court, entrenching a 6-3 conservative majority.Confirming this nominee before the outcome of the national elections – which will determine both the identity of the next president and the composition of a new Senate – is unprecedented, inexcusable and a threat to many rights that the majority of Americans have embraced. This is a tragedy about to happen. More

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      Trump deserves four more years, says ex-counsel who called him 'King Kong'

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      Don McGahn, the former White House counsel credited as an architect of Donald Trump’s makeover of the federal judiciary, has defended Amy Coney Barrett’s nomination to the supreme court, declaring the conservative judge he vetted was “the right person at the right time”.Perhaps more surprisingly, in a rare public appearance on Sunday McGahn also laid out why he believed Trump deserves four more years in power, despite having incurred the wrath of his former boss who blamed him for failing to protect him from the Mueller inquiry, and reportedly having compared an angry Trump to King Kong.“He promised justices in the mold of Antonin Scalia, a great justice,” McGahn told CBS’ Face the Nation. “[Barrett] clerked for Scalia, became a protege of his and I think she’s a fantastic judge. There’s no reason why the Senate shouldn’t confirm her.”McGahn resigned in October 2018, amid the special counsel Robert Mueller’s inquiry into Russian influence on the Trump administration, with which McGahn cooperated extensively as a witness.The Mueller report confirmed that McGahn refused orders from the president to have the special counsel fired.Trump called the allegation “fake news” but tweeted he was “never a big fan” of McGahn. Nonetheless, as White House counsel McGahn masterminded the ascension not only of two supreme court judges, Kavanaugh and Neil Gorsuch, but also hundreds of conservatives to the federal bench.McGahn has never spoken publicly about his links with the special counsel and Trump’s orders to fire Mueller, having resisted a congressional subpoena for months before a federal appeals court ruled he was not compelled to testify.McGahn was however quoted by Michael Schmidt, a Pulitzer prize-winning New York Times journalist, in his recent book Donald Trump v the United States: Inside the Struggle to Stop a President. Schmidt said McGahn insisted his cooperation with Mueller “damaged the office of the president”, not the president himself.On Sunday, Schmidt tweeted his surprise that a man who secretly insulted a president whom he said uttered “some crazy shit” would now break his silence to express public support.“Despite calling Trump ‘King Kong’ behind [his] back for unnecessary destruction and having to serve as chief witness against him in Mueller investigation, McGahn believes so much in mission of remaking federal judiciary that he says Trump deserves four more years,” Schmidt wrote.McGahn told CBS he thought Trump had earned the right to a second term.“He had the economy going wonderfully [before the coronavirus pandemic hit], he made a number of promises on the campaign trail that he kept,” he said.“One is his judicial selection, which he’s done. He’s set a record number of judges on there, on the circuit courts, and this really matters.” More

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      Can the Democrats turn the tables on Trump in supreme court battle?

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      Hard numbers suggest that the fight over the nomination of the conservative Catholic judge Amy Coney Barrett to the US supreme court is over before it begins. The 53-47 Republican majority in the Senate is solidly in favour of Donald Trump’s preferred replacement for the late Ruth Bader Ginsburg – and according to the constitution, it is the Senate, not the Democrat-controlled House of Representatives, that decides. There appears to be little the Democrats can do. But is that true? Get out the votePolls show most voters believe Ginsburg’s replacement should be selected by whoever wins the White House, with independent (uncommitted) voters especially strongly opposed to a rushed process.A Washington Post-ABC News survey found a 58-37% split in favour of delay among all adults. If Republicans defy public opinion and push through a final vote before the 3 November election, Democrats may begin to pick up critical support in several tight Senate contests. In such a scenario, the GOP may delay the final Senate vote until after the election. And if, as seems likely, the election result is itself disputed (and goes to the supreme court for a ruling, as in 2000), politics will freeze – and almost anything could happen. Another worry for Trump: 64% of Democrat voters say the prospect of a reinforced conservative supreme court majority has made it “more important” that Joe Biden wins, as against 37% of Republicans who say the same for Trump. The president is already in trouble with non-religious white suburban women voters, many of whom view him as a misogynist hostile to women’s rights, such as abortion. By energising such opposition, the nomination could backfire on Trump. Change the rulesEven if Barrett’s nomination is confirmed, the Democrats may pursue a number of reforms, without reference to the Supreme Court, that could prevent the Republicans manipulating the electoral system (and thus judicial appointments) in future – and retroactively redress the court’s political balance. One such reform would be a strengthening of the 1965 Voting Rights Act to ensure universal registration and to stop partisan congressional redistricting and vote suppression practices that discourage voting by ethnic minorities in poorer, pro-Democrat areas. Another badly needed measure is an overhaul of the outdated voting system itself, for example to avoid future controversies over postal voting, currently being exploited by Trump. Big snag: in order to implement these and similar measures, the Democrats would need majorities in both houses of Congress, and control of the White House. But proponents say that if that outcome is achieved in November, there must be no hesitation. Democrats, they say, must learn to be as ruthless as their opponents. Move the goalpostsMore radical proposals under discussion include action by a Biden presidency to expand the supreme court bench from the current nine justices to 11, which could go some way towards mitigating the prospective 6-3 conservative majority (assuming Judge Barrett is confirmed). Even more dramatic is a proposal to grant statehood to the District of Columbia, which includes the city of Washington, and to the “unincorporated territory” of Puerto Rico. The disenfranchised African-American and Latino majority in Washington DC has long campaigned for statehood, viewing its denial as discriminatory. With 3.2 million inhabitants, Puerto Rico is more populous than 20 mostly Republican-voting rural states. If both acquired statehood, the 100-seat Senate would gain four, most likely Democrat senators. More