Tuesday, March 5, 2024

Cowardly Lyin’

I said the Supreme Court would not throw Trump off the Colorado ballot because states can’t remove federal candidates… unless they can.  Depends on who you’re asking and when.  Charlie Pierce weighs in on yesterday’s ruling.

It turns out that there is gambling going on in here. From NBC News:

The court in an unsigned ruling with no dissents reversed the Colorado Supreme Court, which determined that Trump could not serve again as president under section 3 of the Constitution’s 14th Amendment. The court said the Colorado Supreme Court had wrongly assumed that states can determine whether a presidential candidate is ineligible under a provision of the Constitution’s 14th Amendment. The ruling makes it clear that Congress, not states, has to set rules on how the 14th Amendment provision can be enforced. As such the decision applies to all states, not just Colorado.

There is the unmistakable aroma of chickenshit to this ruling. An unsigned ruling with no dissents? Sonia? Elena? Ketanji? Hello? Is anybody there? Is this thing on? Testing — one, two? Hello? This lines up neatly with Bush v. Gore on the roster of ring-and-run Supreme Court decisions regarding election law. The latter specifically rejected its value as precedent. And this decision is an anonymous death threat aimed at the 14th Amendment. The Court’s decision is wholly based on its contention that enforcing Section 3 of the 14th as regards federal offices —”especially the presidency,” as the decision says — lies with Congress, and not the individual states. The question of whether or not the former president* actually acted as an insurrectionist in 2020 and 2021 is left unargued. Qui tacet consentire — silence gives consent. The decision is silent on the question. Therefore, the former president* remains an insurrectionist.

The concerns expressed about the deleterious effects of a state-by-state “patchwork” effect on federal elections are certainly well-taken, although, in the light of what has occurred in the wake of its Dobbs decision, the Court’s wariness of patchwork state laws concerning individual rights seems rather selective. In addition, this Court’s decision extensively states as fundamental its decision in U.S. Term Limits v. Thornton, in which it ruled that states could not erect additional barriers to candidates for federal office. Since one of the concurring justices in Monday’s ruling was Clarence Thomas, it is interesting to look back at his dissenting opinion in that earlier ruling. In U.S. Term Limits, Thomas wrote:

Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.

Because the majority fundamentally misunderstands the notion of “reserved” powers, I start with some first principles. Contrary to the majority’s suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress, or to authorize their elected state legislators to do so. Our system of government rests on one overriding principle: all power stems from the consent of the people. To phrase the principle in this way, however, is to be imprecise about something important to the notion of “reserved” powers. The ultimate source of the Constitution’s authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.

Also, too,

In fact, the Constitution’s treatment of Presidential elections actively contradicts the majority’s position. While the individual States have no “reserved” power to set qualifications for the office of President, we have long understood that they do have the power (as far as the Federal Constitution is concerned) to set qualifications for their Presidential electors–the delegates that each State selects to represent it in the electoral college that actually chooses the Nation’s chief executive. Even respondents do not dispute that the States may establish qualifications for their delegates to the electoral college, as long as those qualifications pass muster under other constitutional provisions.

Never mind.

Political consistency is not compatible with intellectual consistency, but Justice Thomas and his colleagues in the carefully cultivated conservative majority on the Supreme Court have turned this fundamental truth into a mad burlesque of twisted logic and bad faith. That Monday’s decision was the furthest thing from a surprise says it all.

Not unlike Bush v. Gore in 2000, the Court pretzelized the logic to meet their political views that fit that particular situation, and if the petitioner was Joe Biden, they would find some way of kicking him off the ballot because…

David French, an editor at the National Review — not your average conservative blowhard — says the Court basically invalidated the Fourteenth Amendment.

As of Monday, March 4, 2024, Section 3 of the 14th Amendment of the Constitution is essentially a dead letter, at least as it applies to candidates for federal office. Under the U.S. Supreme Court’s ruling that reversed the Colorado Supreme Court’s decision striking Donald Trump from the state’s primary ballot, even insurrectionists who’ve violated their previous oath of office can hold federal office, unless and until Congress passes specific legislation to enforce Section 3.

In the aftermath of the oral argument last month, legal observers knew with near-certainty that the Supreme Court was unlikely to apply Section 3 to Trump. None of the justices seemed willing to uphold the Colorado court’s ruling, and only Justice Sonia Sotomayor gave any meaningful indication that she might dissent. The only real question remaining was the reasoning for the court’s decision. Would the ruling be broad or narrow?

A narrow ruling for Trump might have held, for example, that Colorado didn’t provide him with enough due process when it determined that Section 3 applied. Or the court could have held that Trump, as president, was not an “officer of the United States” within the meaning of the section. Such a ruling would have kept Trump on the ballot, but it would also have kept Section 3 viable to block insurrectionists from the House or Senate and from all other federal offices.

A somewhat broader ruling might have held that Trump did not engage in insurrection or rebellion or provide aid and comfort to the enemies of the Constitution. Such a ruling would have sharply limited Section 3 to apply almost exclusively to Civil War-style conflicts, an outcome at odds with the text and original public meaning of the section. It’s worth noting that, by not taking this path, the court did not exonerate Trump from participating in an insurrection.

But instead of any of these options, the court went with arguably the broadest reasoning available: that Section 3 isn’t self-executing, and thus has no force or effect in the absence of congressional action. This argument is rooted in Section 5 of the amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

[…]

In one important respect, the court’s ruling on Monday is worse and more consequential than the Senate’s decision to acquit Trump after his Jan. 6 impeachment trial in 2021. Impeachment is entirely a political process, and the actions of one Senate have no bearing on the actions of future Senates. But a Supreme Court ruling has immense precedential power. The court’s decision is now the law.

It would be clearly preferable if Congress were to pass enforcement legislation that established explicit procedures for resolving disputes under Section 3, including setting the burden of proof and creating timetables and deadlines for filing challenges and hearing appeals. Establishing a uniform process is better than living with a patchwork of state proceedings. But the fact that Congress has not acted should not effectively erase the words from the constitutional page. Chaotic enforcement of the Constitution may be suboptimal. But it’s far better than not enforcing the Constitution at all.

We’re a nation of laws… unless your preferred candidate is breaking the law.

Sunday, March 3, 2024

Sunday Reading

The Fix Has Always Been In – Charles P. Pierce wonders why anyone is surprised that the Supreme Court might be subject to political pressure and whims.

So, the Supreme Court is afflicted by politics. So, the Supreme Court is ipso facto corrupt. So, we are all so horrified that we may never get out of bed in the morning, right?

Please.

As soon as our revered Founders gave the confirmation power to the legislative branch, they made that process political. They knew it, too, especially when they stopped being Founders and started being government officials. The ur-case for the Court under the Constitution, Marbury v. Madison, grew out of a purely political controversy, and among the actual Founders, too. After Thomas Jefferson defeated incumbent John Adams, the first time that the White House had changed hands between political parties, after a brutal presidential campaign. The lame-duck Federalist majority in the Congress then passed the Judiciary Act of 1789, which created 16 new federal circuit judges and a whopping 42 new justices of the peace. This was clearly a move to cement Federalist authority within the national government in the face of an electoral defeat. Adams, the lame-duck president, signed the act.

(Here is where we mention one of the worst ideas the Founders had: scheduling presidential elections for November and yet not scheduling the inauguration of the elected president until the following March. That left far too much time for chicanery like the Judiciary Act. Also, the episode demonstrated permanently one of the great flip-flops in American political history. The Founders never shut up about the threat posed by political parties to democratic government. And the moment the Constitution was up and running, they all split up sides. These were essentially political men doing political things. ’Twas ever thus.)

In 1803, during the presidential interregnum, outgoing President Adams, a Federalist, commissioned a certain William Marbury to be a justice of the peace. The incoming Secretary of State, none other than James Madison, a member of the Democratic Republican Party, refused to deliver Marbury his commission. Marbury sued. Chief Justice John Marshall used the case to establish the principle of judicial review, declaring that, “a law repugnant to the Constitution is void.” Cool theory, John but, as it turned out, it didn’t get Marbury his job, either, because the decision also said that the Court didn’t have the authority to grant Marbury his requested relief. At which point, Marbury said, “phooey,” and went back to being a wealthy banker.

The case was a political conflict from start to finish — conducted by partisan politicians, and the final salvo in one of the toughest presidential campaigns in American history. And not for nothing, but Marbury’s old house is now the Ukrainian Embassy in D.C.

So, enough with being shocked that the Supreme Court is a political institution. I will grant you that the current Supreme Court majority was carefully cultivated beyond other, easier attempts at it. And it further prevented Court nominees from acting in unpredictable ways once elevated to the Big Bench. No more Earl Warrens, the Republican governor of California who’d signed the bill sending Japanese citizens to detention camps and who, upon becoming chief justice, went against type so radically that President Dwight Eisenhower mused that appointing Warren was the worst mistake of his two terms as president.

No more David Souter, whom President George H.W. Bush put on the Court, only to discover that he had appointed one of the true eccentrics in the history of that body. He spiced his tenure on the Court, in which he disappointed his Republican patrons repeatedly in the areas of reproductive rights and civil rights, with regular musings about how he wanted to go back to New Hampshire, which he eventually did and, I think, disappeared into the mountains like Jeremiah Johnson, never to be seen again.

So the final stages of the successful conservative long march to control the federal judiciary differed only from its mechanics from the history of the Court as essentially a political entity. The tendency took on an irresistible momentum in 2000, with the appallingly partisan decision in Bush v. Gore. And it turned the final corner when Mitch McConnell broke all the remaining barriers of custom by defiantly refusing to give President Obama’s nominee, Merrick Garland, even the courtesy of a hearing. The result was the careful cultivation of the current conservative majority, which has behaved just as a modern major cultivated conservative majority would.

My point is that every major moment in the cultivation of our current Supreme Court crisis was essentially a political act. It was achieved by political means employed by political men for political ends — to wit, the political triumph of conservative policies and a general conservative agenda that never had a chance of surviving the legislative process intact. There is no longer any doubt of that, and that it is perilously close to remaking the country behind the country’s back.

So enough, already with the shock about the Court’s political nature. You might as well be shocked at a duck for quacking. History tells us we’ve been through this before, and we’ve barely survived it.

In 1857, the Supreme Court’s decision in Dred Scott v. Sandford had the distinctly political effect of shoving the country downhill toward the cataclysm of the years 1860-65. In 1896, the Supreme Court’s decision in Plessy v. Ferguson had the distinctly political effect of re-establishing white supremacist control of the former Confederate states, essentially continuing the political work of Dred Scott after the interruption of the American Civil War. But neither of those decisions is as relevant to our current situation as the political acts of the Supreme Court at the end of the 19th Century.

The political consensus of the country as it moved from civil war into the Gilded Age was to obscure the former behind the glitter of the latter. It was a monumental political exercise in looking forward and not back, something with which we have become sadly familiar in this century. The Supreme Court and its decisions in that time conformed not to legal niceties but to the prevailing political zeitgeist.

First came the so-called Slaughter-House cases, the first tests of the guarantees provided by the newly ratified 14th Amendment. Somehow, the Court turned those guarantees on their heads, turning them into a bulwark of the states’ rights view of the Constitution, a theory you would have thought had died with the Army of Northern Virginia. But Chief Justice Samuel Miller’s majority opinion effectively rendered the true purpose of the 14th moot.

(This has been the attitude of conservative legal scholars toward the 14th ever since. For example, the findings in Bush v. Gore depend vitally in an unprecedented interpretation of what the 14th Amendment means.)

So, hard after these decisions, we had U.S. v. Cruickshank, authored by Chief Justice Morrison Waite, the compromise choice of President Ulysses S Grant, who accelerated the legal unravelling of everything Grant had won at Appomattox and the political undermining of everything contained in the Gettysburg Address. In the Cruikshank case, Waite ordered the release of white-supremacist extremists who had been jailed in Louisiana after they’d attacked and killed over 100 black citizens in what had become known as the Colfax Massacre. In releasing the defendants, Waite wrote that the federal Enforcement Act under which the defendants had been convicted violated the rights of the killers under the First, Second, and 14th amendments to the Constitution.

The Gilded Age’s heedless tumble toward establishing a true American autocracy came to fruition in 1886 in the bizarre case of Santa Clara County vs. Southern Pacific Railroad. In this case, Justice John Marshall Harlan’s majority opinion held for the railroads, but did not touch any 14th amendment guarantees regarding the rights of corporation. However, as the decision was recorded, Chief Justice Waite approved a “headnote” added by the Reporter of Decisions that stated flatly that the justices had approved of the notion that corporations were entitled to the Equal Protection clause of the 14th Amendment. And thus was born in American law the idea of corporate personhood. And thus, 124 years later, was born the Supreme Court’s decision in Citizens United v. FEC, which has engendered a flood of unaccountable money that may have permanently deranged the political order.

So let’s not be shocked, OK, when the carefully cultivated conservative majority on the Supreme Court does a criminal former president* a solid regarding the lunatic theory of unlimited presidential immunity? We’ve all seen this movie before, or our ancestors did.

Put not your trust in princes, nor in the son of a man, in whom there is no help, the Psalmist warns us. The same, alas, goes for judges, political actors produced by a political process for the purpose of accomplishing certain political aims. Conscience has been bled out of that process in favor of expedience. Credibility has drained out with it.

Doonesbury — Sympathy for the Devil

Wednesday, February 21, 2024

Take The Money And Run, Clarence

John Oliver has a perfectly legal offer for Supreme Court Justice Clarence Thomas.

When it comes to Supreme Court reform, John Oliver is tired of just talking about term limits and ethics codes. Instead, the late-night talk-show host said he’s taking a page out of the playbook used by the rich and powerful, who the comedian said routinely lavish gifts on public servants to curry favor.

“If we’re going to keep the bar of accountability this low, perhaps it’s time to exploit that low bar the same way billionaires have successfully done for decades,” Oliver said on Sunday’s episode of HBO’s “Last Week Tonight,” before announcing the offer he had for Supreme Court Justice Clarence Thomas: $1 million per year if he steps down from his post immediately.

Oliver is also throwing in a new $2.4 million motor coach that’s outfitted with a king-size bed, four televisions and a fireplace — a potential deal-sweetener for Thomas, who has come under fire for receiving significant gifts and favors from a network of wealthy friends and patrons.

Oliver’s “somehow legal” proposal — at least, according to the experts he consulted, Oliver said — was made at the end of a segment devoted to the highest court in the land. The Supreme Court, Oliver argued, had reached a “breaking point” following a string of scandals involving the patronage of right-wing billionaires — many of whom, the comedian pointed out, have a stake in some of the cases brought before the court.

“In their confirmation hearings, they pretend to have no idea how they’ll rule on hot-button issues, and we all have to pretend to believe them before we appoint them to a job that they can hold until they die,” Oliver said. “We don’t treat them like what they are, which is people who can be motivated by ideology and greed like anybody else.”

A spokesperson for the Supreme Court did not respond Monday to a request for comment from The Washington Post.

Oliver’s segment came at a time in which public confidence in the Supreme Court has sunk to record lows.

A poll last year by Gallup found that only 9 percent of Americans have a “great deal” of trust and confidence in the “judicial branch headed by the U.S. Supreme Court.” The poll also showed that 58 percent of Americans “disapprove” of the way the Supreme Court is handling its job — the highest disapproval rating for the court since Gallup began tracking in 2000.

“Going forward, concerns about Supreme Court justices’ acceptance of gifts and lavish trips, particularly among two conservative justices, may subdue the public’s approval of and trust in the nation’s highest court,” Gallup concluded, referring to the controversies surrounding Thomas and Justice Samuel A. Alito Jr.

Oliver mentioned that Alito had failed to disclose his luxury fishing vacation in Alaska with a wealthy hedge fund executive — which reportedly included dinners of king crab legs and wine worth $1,000 a bottle, according to an investigation by ProPublica — but the bulk of his show centered on Thomas.

Oliver delved into the controversies Thomas has faced in his more than three decades on the high court, including failing to disclose lavish trips with Harlan Crow — a Dallas-based real estate investor and a major Republican donor — and his wife’s texts urging Donald Trump’s White House chief of staff to overturn the 2020 election. The comedian also noted that Thomas has not recused himself from cases in which there is an apparent conflict of interest or in which he may have received gifts from special-interest groups.

“It’s not that these billionaires paid Thomas to change his views. It’s that they like his views so they’re paying for him not to leave, which is different, but not better,” Oliver said.

Thomas has denied wrongdoing and said he was advised that he did not need to disclose trips and gifts from wealthy donors, who are some of his “dearest friends.”

“Early in my tenure at the court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable,” Thomas said in a statement in April, The Post previously reported.

In the wake of deep scrutiny, the Supreme Court announced in November that it had adopted a new code of conduct, but that it did not have a way to enforce those standards against those who fall short.

It was for that reason that Oliver decided it was time to put his own pocket on the line. And if $1 million a year until either of the men die is not enough, Oliver said, then taking the deal is probably “the perfect way to find out who your real friends actually are.”

“That’s the beauty of friendship, Clarence,” Oliver said, standing next to the state-of-the-art motor coach he is offering the justice. “If they’re real friends, they’ll love you no matter what your job is.”

But, Oliver warned, his offer expires in 30 days.

“Let’s do this!” he screamed, throwing a wad of dollar bills into the air to cheers from the audience.

As the money floated down around him like confetti, Oliver asked the million-dollar question: “How is this legal?”

Don’t worry, Clarence; Ginni will grift enough to keep you comfy.

Tuesday, February 13, 2024

Hey, Boo-Boo

Via HuffPost:

Former federal prosecutor Andrew Weissmann on Monday expressed his surprise at what he described as an “incredibly inappropriate first sentence” in Donald Trump’s filing to the U.S. Supreme Court in which the former president’s lawyers argued he should have “total immunity” for potential criminal acts committed when he was in the White House.

“This application is ‘déjà vu all over again,’” the filing from Trump’s legal team began, citing and crediting a so-called “Yogi-ism” from the late New York Yankees catcher Yogi Berra.

“If you were going to be snarky, they might as well have cited Yogi Bear,” Weissmann told MSNBC’s Alicia Menendez.

“I mean, that is just a bizarre way to start on something they are asking the Supreme Court,” he added.

Weissmann reminded viewers that Trump’s lawyers have essentially said “their position is that the President of the United States can kill people and as long as he hasn’t been impeached successfully, in other words impeached and convicted for it, he cannot be prosecuted.”

“So, for something this serious, that is a bizarre, really bizarre first sentence and I think has a real tin ear,” he added.

A three-judge D.C. Circuit Court of Appeals panel earlier this month ruled Trump didn’t enjoy absolute immunity as POTUS and therefore could face prosecution in the D.C. election subversion case, one of four criminal cases the Republican 2024 front-runner faces.

Honestly, he sounds closer to Yogi Bear, but he’s not smarter than the average Berra.

Thursday, December 21, 2023

Calling Their Bluff

Charles P. Pierce on the Colorado Supreme Court ruling.

Holy Jesus H. Christ on a $4,000 retainer, they actually did it. From the Denver Post:

The [Colorado] Supreme Court, in a 4-3 opinion, found that Trump is barred under a provision of the 14th Amendment that prohibits people who engaged in insurrection from running for office, based on his actions surrounding the Jan. 6, 2021, U.S. Capitol breach and riot by his supporters. “We conclude that because President Trump is disqualified from holding the office of President under Section Three (of the 14th Amendment), it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot,” the court’s majority opinion says. “Therefore, the Secretary may not list President Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him.”

And there it is — flat, definitive, and faithful to the letter and, especially, to the spirit of the indomitable 14th Amendment to the Constitution. Which generations of American conservatives have worked earnestly to erase from the collective memory as anything but a relic of the immediate post-Civil War years. But, like John Barleycorn in the ancient Childe ballad, it springs up its head and so amazes them all. And it calls every bluff.

First, and most critical, it calls all of ours. Do we believe in the Constitution, and the wounded republic that it created or not? If we do, then this decision out of Colorado is plainly the correct one. Section 3 of the 14th says what it says, and for a precise purpose — to keep the likes of the former president* off all ballots and out of the federal government forever. If we believe in that, we will not listen to the trimmers and the hedgers and the dealers in savvy, the people who tell us this decision is “bad politics.” We will not listen to the voices from the MAGA right, threatening civil war.

Second, it calls the bluff of the United States Supreme Court, which is currently operating like a crooked New Jersey contracting firm that feels the Feds closing in. The easiest — to say nothing of the most intellectually coherent — thing for the proud “originalist” jurists to do is to deny the Republican appeal out of hand, leaving the Colorado court’s decision to stand. But that’s about as likely as Justice Clarence Thomas’ deciding to recuse himself from sitting on the case. Nevertheless, the Colorado Supremes get major style points for hanging Justice Neil Gorsuch with his own words.

Last, it calls the bluff of the cowardly sycophants of the Republican Party, especially the invertebrates who are presuming to run for president, and all of whom rallied around the former president* like the lapdogs they are. Most ridiculous was Vivek Ramaswamy, who vowed to boycott personally the Colorado primary unless the former president* is allowed on the ballot. I trust we don’t have to explain how monumentally stupid it is for a presidential contender not to contest a primary from which the frontrunner has been banned, and to do so unless and until the frontrunner is again allowed to stomp him like a grape.

The decision is stout and learned in its defense of the 14th. It is clear, concise, and logical in its reasoning. For example, it firmly defends the right of Colorado to police its own elections. (Whether or not states should conduct election for national office is another argument for another day.) Take heed, Justice Gorsuch.

Were we to adopt President Trump’s view, Colorado could not exclude from the ballot even candidates who plainly do not satisfy the age, residency, and citizenship requirements of the Presidential Qualifications Clause of Article II… It would mean that the state would be powerless to exclude a twenty-eight-year-old, a non-resident of the United States, or even a foreign national from the presidential primary ballot in Colorado. Yet, as noted, several courts have upheld states’ exclusion from ballots of presidential candidates who fail to meet the qualifications for office under Article II.

It also is profound in its respect for the history and, yes, for the original intent of the 14th and, in fact, of all of he Reconstruction Amendments.

The self-executing nature of that section has never been called into question, and in the reapportionment following passage of the Fourteenth Amendment, Congress simply treated the change as having occurred (apportioning Representatives to the various states based on Section Two’s command without mentioning, or purporting to enforce, the Fourteenth Amendment). Similarly, Congress never passed enabling legislation to effectuate Section Four…

…Furthermore, we agree with the Electors that interpreting any of the Reconstruction Amendments, given their identical structure, as not self-executing would lead to absurd results. If these Amendments required legislation to make them operative, then Congress could nullify them by simply not passing enacting legislation. The result of such inaction would mean that slavery remains legal; Black citizens would be counted as less than full citizens for reapportionment; non- white male voters could be disenfranchised; and any individual who engaged in insurrection against the government would nonetheless be able to serve in the government, regardless of whether two-thirds of Congress had lifted the disqualification. Surely that was not the drafters’ intent.

I hold no illusions that the Supreme Court will not find some clumsy parsing and retroactive mind-reading that will allow it to say that the 14th should not operate the way its plain language says it should. I’m not blind to the damage a wounded MAGA movement can still do to the nation. But, for a moment, anyway, we have been given a glimpse of how constitutional self-government is supposed to operate, a peek into our common heritage, dusty though much of it may be, and a peek into our obligations to that heritage. At this moment, we see what we must do.

They’ve let him lie for a very long time

Till the rains from heaven did fall

And little Sir John sprung up his head

And so amazed them all.

— Unknown, circa 1642.

Wednesday, December 20, 2023

Disqualified

From the AP:

DENVER (AP) — A divided Colorado Supreme Court on Tuesday declared former President Donald Trump ineligible for the White House under the U.S. Constitution’s insurrection clause and removed him from the state’s presidential primary ballot, setting up a likely showdown in the nation’s highest court to decide whether the front-runner for the GOP nomination can remain in the race.

The decision from a court whose justices were all appointed by Democratic governors marks the first time in history that Section 3 of the 14th Amendment has been used to disqualify a presidential candidate.

“A majority of the court holds that Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment,” the court wrote in its 4-3 decision.

Colorado’s highest court overturned a ruling from a district court judge who found that Trump incited an insurrection for his role in the Jan. 6, 2021, attack on the Capitol, but said he could not be barred from the ballot because it was unclear that the provision was intended to cover the presidency.

The court stayed its decision until Jan. 4, or until the U.S. Supreme Court rules on the case. Colorado officials say the issue must be settled by Jan. 5, the deadline for the state to print its presidential primary ballots.

“We do not reach these conclusions lightly,” wrote the court’s majority. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

Of course it’s not over.  The case will be appealed to the US Supreme Court, and they — with three Trump appointees and Clarence Thomas — will make the final ruling.

It’s too early to celebrate anything other than the fact that the Colorado Supreme Court went to great lengths to come to this decision.  The rule of law, for now, abides.

Wednesday, December 13, 2023

That’s Not How It Works

Charlie Pierce on “presidential immunity.”

Damn you, Jack Smith. Give a brother a chance to catch up. From the Washington Post:

Smith made his request for the court to act with unusual speed to prevent any delays that could push back the trial of the 2024 Republican presidential primary front-runner, currently set to begin March 4, until after next year’s presidential election. Later Monday, the justices indicated they would decide quickly whether to hear the case, ordering Trump’s lawyers to respond by Dec. 20. The court’s brief order did not signal what it ultimately would do.

A federal judge ruled the case could go forward, but Trump said he would ask the federal appeals court in Washington to reverse that outcome. Smith is attempting to bypass the appeals court, the usual next step in the process, and have the Supreme Court take up the matter directly.

“This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin,” prosecutors wrote.

Well, yes, it does. It also presents other fundamental questions. These are some of them.

Does the current carefully cultivated conservative majority on the Supreme Court possess even the slightest degree of integrity that God gave a goat? Does it recognize its duty as clearly as the Burger Court did in U.S. v. Nixon? Does it recognize that obvious fact that the former president’s lawyers dreamed up this “presidential immunity” out of the thin, foul air of Mar-a-Lago. Is its collective hive mind sharp enough to recognize an off-ramp when it sees one?

The last question is worth studying on a bit. The Court already has followed the Burger precedent in agreeing to hear the case at Smith’s request, bypassing the Appeals court and accelerating the process to a point that obviates the obvious stalling tactics employed by the mouthpieces for Fulton County (Ga.) Inmate No. P01135809. It also gives the Supreme Court a way to absent itself from the fray. If the Court decides for Smith, then it’s out of the hurly-burly until the inevitable appeal of the ultimate verdict. It can go back to its real work of cutting loopholes in the Constitution for the benefit of their various sugar daddies, for a while, anyway.

(And should Justice Clarence Thomas recuse himself from hearing this matter because his wife was so intimately involved in the events of January 6? Of course, he should, but he won’t, and it’s very unlikely that Chief Justice John Roberts would push him to do so.)

Underscoring the urgency for prosecutors in securing a quick resolution that can push the case forward, Smith and his team wrote: “It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected.”

At issue is a Dec. 1 ruling from U.S. District Judge Tanya Chutkan that rejected arguments by Trump’s lawyers that he was immune from federal prosecution. In her order, Chutkan, who was appointed by President Barack Obama, wrote that the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”

Keith Olbermann on his daily podcast made the very salient point that, if this fanciful theory were a real thing, then Richard Nixon wouldn’t have had Al Haig lobbying Gerald Ford for a pardon and Ford wouldn’t have needed to issue one, thereby torpedoing his presidency in its infancy. For that matter, Olbermann pointed out, if he really believed in “presidential immunity,” the former president* wouldn’t have publicly mused about pardoning himself. If you’re going to propose a bullshit constitutional principle, you should at least pretend you believe in it.

Smith’s team stressed that if the court did not expedite the matter, there would not be an opportunity to consider and resolve the question in the current term. “The United States recognizes that this is an extraordinary request. This is an extraordinary case,” prosecutors wrote. “The Court should grant certiorari and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible.” Prosecutors are also asking the court to take up Trump’s claim, also already rejected by Chutkan, that he cannot be prosecuted in court for conduct for which he was already impeached — and acquitted — before Congress.

At the very least, the Court seems to be taking Smith’s request seriously. It’s given the former president’s mouthpieces nine days to respond to Smith’s brief on the subject, which should be amusing anyway. And it’s important to remember that the Court already unanimously shredded this theory back in 2020, when it ruled that the then-president* was not absolutely immunized against a subpoena issued in New York regarding his business practices. During that case, Trump’s own lawyers argued that he was not permanently immune from subsequent prosecutions under state and federal law. It’s tough being one of the former president*’s lawyers. You’re strapped into a perpetual-motion professional Tilt-A-Whirl and there’s nobody at the controls.

The Supreme Court has been known to make up laws and their interpretations from the bench to suit their own interests or protect their asses (e.g. Bush v Gore).  I wouldn’t put it past them to come up with some whole new idea of what constitutes “official duties” that include an attempt to circumvent the Constitution and reinstate Trump and perhaps even Richard Nixon.  You can take the toad out of the swamp…

Tuesday, November 14, 2023

Ethically Challenged

So, the Supreme Court finally got the hint that they need to have a code of ethics.  Yip yah, right?  Well…

The Supreme Court on Monday adopted its first code of ethics, in the face of sustained criticism over undisclosed trips and gifts from wealthy benefactors to some justices, but the code lacks a means of enforcement.

The policy, agreed to by all nine justices, does not appear to impose any significant new requirements and leaves compliance entirely to each justice.

Indeed, the justices said they have long adhered to ethics standards and suggested that criticism of the court over ethics was the product of misunderstanding, rather than any missteps by the justices.

We’re going to have to take them at their word that they’re complying — pinky swears, I suppose — and even if they’re hoarding cash in the basement or taking free Gulfstream flights at the behest of their rich donors who have cases before them, it won’t matter.  It’s okay because they’re the Supremes and we should just trust them that they’re above reproach.

Feh.

Monday, July 10, 2023

Separate Not Equal

The Supreme Court brought back an oldie last month: Plessy vs. Ferguson and the doctrine of separate but equal treatment for the queer community.

Sabrina Haake in Salon summarizes:

In 1896, the Supreme Court issued one of the most shameful decisions in US history, Plessy vs. Ferguson.  The landmark decisionupheld ‘separate but equal’ public accommodations, barring recently freed black people from ‘white’ accommodations including lodging, businesses, and schools. For decades, the ruling stood as the legal justification for the hateful scourge of Jim Crow.

It would take more than fifty years of social upheaval and civil rights demonstrations before the Court finally admitted it was wrong.  In 1954, in Brown vs. Board of Education, the Court overturned Plessy, ruling that separate public accommodations violate the equal protection clause of the 14th Amendment, which holds that no state can “deny to any person within its jurisdiction the equal protection of the laws.”

SCOTUS carves out new exceptions

With its decision in the 303 Creative LLC v. Elenis case, the Supreme Court’s conservative majority returned to the days of sanctioned separation  by re-casting discriminatory conduct as ‘free speech.’

In 303 Creative, the Court ruled that web design services- a public accommodation by the court’s definition- are ‘creative expressions’ entitled to a ‘free speech’ carve-out from anti-discrimination laws.  Writing for the majority, Justice Neil Gorsuch repackaged a web designer’s religious objection to gay marriage as a superficially anodyne ‘pure speech’ question, concluding that requiring web designers to serve same-sex couples would be “coercing” them to make “statements” with which they disagreed.

The Court has now conflated discriminatory acts into ‘creative expressions’ under the 1st A.  The ruling involved wedding websites and gay couples, but its application is nowhere so confined.  Web designers can now refuse service to any group (gay, black, interracial, etc.) doing something that offends their personal beliefs, and can also advertise that those groups “will not be served.”

Dissenting Justices Sotomayor, Kagan, and Jackson presented decades of Supreme Court precedent holding that antidiscrimination laws in commerce don’t target speech, they target conduct, the act of discrimination.

The dissent also disagreed that web designs are pure protected ‘speech.’ Professional web design incorporates standard commercial elements:  interfacing, streaming, code, navigation, photos, consultation, music, and messaging.  A custom website does not convey the developer’s personal beliefs, it conveys an underlying commercial message.  Finally, the designer chose to sell her websites to the public, a public accommodation protected under the anti-discrimination laws of the state, laws that don’t apply to religious organizations but do apply to for-profit businesses.

Rejecting these arguments, the majority focused exclusively on the designer’s ‘speech’ rights, sarcastically dismissing the dissent’s ‘separate but equal’ warning and concern for groups who will be denied service.

The procedural history alone reveals a majority eager to set national policy- not a good look for Federalist Society jurists who claim to reject judicial overreach.

First, SCOTUS took the case prophylactically, before the designer had even begun her web design business.  Foundational ‘standing’ in the case was not based on any injury, imminent or otherwise, it arose from a fictional request for service.  Why would the Court embrace a flimsy, extrajudicial ‘pre-enforcement challenge’ based on hypotheticals?  To set policy.

Second, Colorado’s Anti-Discrimination Act prohibits public businesses from denying “the full and equal enjoyment” of their goods and services to any customer based on his race, creed, disability, or sexual orientation.  Discussing literal ‘public accommodations’ like inns and hotels, Gorsuch suggested they were historically prohibited from discriminating only because they enjoyed market monopolies.  There is no known case that limits anti-discrimination to monopolies; Gorsuch seems to think there should be, implying that small businesses can turn away groups they don’t like.

Third, Gorsuch summarily dismissed Sotomayor’s ‘separate but equal’ objections as ‘pure fiction,’ delivering a tutorial on how you, too, can legally refuse to serve people you don’t like.  There’s virtually no profession that lacks ‘creative expression.’  Under the Court’s reasoning, any professional who engages in ‘expressive conduct’ (chefs, architects, administrators, etc.) can recast discriminatory bias- against whomever- as protected speech.  Simply ‘express’ your beliefs in the normal course of business, the Court will conflate your speech with your service and voila! – discrimination is protected speech.  If you run an inn, write on your kiosk that homosexuality is a sin.  Your speech will be protected by the First A, with the added bonus that gay patrons would rather sleep in their car than lodge there.  If you get sued, stress the expressive elements of your business, from your choice of furnishings, colors and fabrics to marketing, including the fanciful words you inscribe on the bibles in each room.  Because your curated rooms are your ‘statement’ of expressive conduct, letting gay lodgers sleep in them conveys personal approval of homosexuality, a statement the state cannot coerce you into.

Concluding her dissent, Sotomayor describes a ‘sad day’ for civil rights, coming just as hundreds of anti-LGBT laws have been introduced throughout the country, and a major candidate for US president has made gay persecution his campaign focus. But the tragedy of 303 Creative isn’t that bigots are getting away with bigotry.  It’s that the high Court relegated certain individuals to second-class status without so much as a glance at the 14th Amendment, just as it did last year in Dobbs.

The Court’s right-wing bloc has delivered the goods to the dark money that put it there, with a clear advertisement of its own. Equal Protection: Women and minorities need not apply.

It was only a matter of time before this court would find their way around the civil rights rulings of the 1950’s and ’60’s to get us back to the good old days when white Christian men could run the place again, sweeping aside all those Others — blacks, women, queers — who somehow got the uppity idea that they had a place at the table.  And all those WASPy men who used to complain about activist judges who wrote legislation from the bench, are now showing us how it is done.

I’m almost 71 years old.  This will not be undone in my lifetime.  So for all of you who just couldn’t pull the lever for Hillary Clinton because…  This is on you.  Thanks a bushel.

Monday, July 3, 2023

What The Ruling Really Says

Don’t kid yourself; the Supreme Court’s 6-3 ruling overturning nearly sixty years of affirmative action wasn’t about whether or not it was constitutional.  it was about making sure that white supremacy still has a voice in America.

From Mitchell S. Jackson in Esquire:

… In his (6-3) majority opinion, Chief Justice John Roberts wrote, “The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today,”

Reading the Chief Justice’s words, one might think that systemic racism has somehow vanished from the citadels of academia, when even the least bit of critical inquiry turns up the truth that it’s been alive and thriving. Roberts need look no further for convincing proof of the endurance of white privilege than the very position he holds. Of the 17 Supreme Court chief justices in this country’s history, every single one of them have been a white man; not to mention, the recent ones were educated and Ivy-League universities (Roberts himself earned his law degree from Harvard). For yet more proof of the power of elite educations, he need look no further than the fact that, of his current fellow justices, all but one—Associate Justice Amy Coney Barrett—were educated at Harvard or Yale. The problem is Roberts and his “conservative” affirming court weren’t looking forreal forreal. If they were, they would’ve found that there’s been no such thing as equal protection or access in academia.

Not Roberts’ nor anyone else’s legalese should obfuscate this obvious truth: The campaign and eventual overruling of affirmative action is an act of white supremacy.

[…]

Once there was man named Noel Ignatiev. Ignatiev, a Jewish man, grew up in Philadelphia and as a young person was active in several social-political organizations. Ignatiev earned a Ph.D. in Education from Harvard in 1995. While in graduate school he studied racism, arriving at the wisdom that race is a social construct and not a scientific fact. Ignatiev wrote books about the subject (once pointing out the absurdity that a white woman could give birth to a Black child but a Black woman could never give birth to a white child) and founded a journal called Race Traitor to “chronicle and analyze the making, remaking, and unmaking of whiteness.” Ignatiev believed “ordinary Americans are drawn by the conditions of their lives in two opposite directions, one that mirrors and reproduces the present society of competition and exploitation, and another that points toward a new society based on freely associated activity.”

The whites championing and sanctioning the end of affirmative action are the former kind of Americans—the ones hoping to mirror and reproduce the competition and exploitation. And the most despicable and dangerous of those Americans are Throwback whites. Throwback whites want to regress us to the yesteryear when the only real competition they had was between themselves, and the rest of us were ripe for exploitation.

Throwback whites grabbed tiki torches and stomped through the Charlottesville screaming “YOU WILL NOT REPLACE US.” Throwback whites are championing book bans across the country. Throwback whites are fighting hard to gerrymander voting districts, scheming on other forms of voter suppression. A Throwback white, as the governor of Texas, banned diversity and inclusion departments and initiatives in state universities and colleges. A Throwback white, as the governor of Florida, billboarded his bigotry by gathering asylum-seeking immigrants in his state and dropping them in Martha’s Vineyard. One Throwback white, I swearfogod, is a Black man who’s squatted on the highest court for over 30 years, and all the while dedicated himself to jurisprudence that oppresses his skinfolk.

Be not lead astray—the Throwback whites are uninterested in ushering us to the utopia of equality and justice for all, rather in returning us to the days of the constitution’s penning, a time when I was 3/5th of a man, a fractionalized human who was forbidden an education.

And for white folks who exist on a continuum between “hella hopeful” and “disillusioned,” know this: The Court’s opinion is not some fringe perspective. It’s thinking aligned with figureheads who own a reasonable shot at becoming our next president.

Amen.

Friday, June 30, 2023

Colorblind?

Given the Supreme Court’s record of overturning precedents from generations past and basically taking away rights that minorities fought for, this ruling is not a surprise at all.

The Supreme Court on Thursday held that race-conscious admissions programs at Harvard and the University of North Carolina violate the Constitution’s guarantee of equal protection, a historic ruling that rolls back decades of precedent and will force a dramatic change in how the nation’s private and public universities select their students.

The votes split along ideological grounds, with Chief Justice John G. Roberts Jr. writing for the conservative members in the majority, and the liberals dissenting. While the ruling examined Harvard and UNC, its impact will be felt across the nation.

Elite universities have contended that without considering race as one factor in admissions, their students bodies will contain more Whites and Asian Americans, and fewer Blacks and Hispanics.

But, “the student must be treated based on his or her experiences as an individual — not on the basis of race,” Roberts wrote, joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

Justice Sonia Sotomayor, the court’s first Latina and a proponent of affirmative action, read parts of her opinion from the bench in a show of profound disagreement.

“The devastating impact of this decision cannot be overstated,” she wrote in her dissent, which was joined by fellow liberals Elena Kagan and Ketanji Brown Jackson, who is the first Black female justice. “The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.”

It was the second time in as many terms that the court’s dominant conservative majority has abandoned decades-old, landmark rulings. The votes were 6-to-3 in the University of North Carolina case and 6-to-2 in the Harvard case, with Jackson recusing herself because she served on a board at Harvard.

Last year, the justices ended the guarantee of abortion rights that the high court found nearly 50 years ago in Roe v. Wade.

In her dissent, Sotomayor made a pointed reference to the speed at which the conservative majority is advancing its jurisprudence on key societal issues.

“The six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law,” she wrote.

Don’t kid yourself, Justice Sotomayor. We still have affirmative action. It’s just for rich white folks now.

Monday, April 17, 2023

History Lesson — Courting Justices

You have to be of a certain age to remember Abe Fortas.  For those you don’t, here’s a refresher.

Abraham Fortas (June 19, 1910 – April 5, 1982) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1965 to 1969. Born and raised in Memphis, Tennessee, Fortas graduated from Rhodes College and Yale Law School. He later became a law professor at Yale Law School and then an advisor for the U.S. Securities and Exchange Commission. Fortas worked at the Department of the Interior under President Franklin D. Roosevelt, and was appointed by President Harry S. Truman to delegations that helped set up the United Nations in 1945.

Sounds like a pretty good guy: strong educational background, served his country well.  Read on.

Nominated by [President Lyndon] Johnson to the Supreme Court in 1965, Fortas was confirmed by the Senate, and maintained a close working relationship with the president. As a Justice, Fortas wrote several notable majority opinions including Tinker v. Des Moines Independent Community School District.

In 1968, Johnson tried to elevate Fortas to the position of chief justice of the Supreme Court, but that nomination faced a filibuster and was withdrawn. Fortas later resigned from the Court after a controversy involving his acceptance of $20,000 from financier Louis Wolfson while Wolfson was being investigated for insider trading. The Justice Department, including future Chief Justice William Rehnquist, investigated Fortas at the behest of President Richard Nixon, who saw the idea of removing Fortas as a chance to move the Court in a more conservative direction, and Attorney General John N. Mitchell pressured Fortas into resigning. After retirement, Fortas returned to private practice, sometimes appearing before the justices with whom he had served.

Justice Fortas was forced to resign because of a controversy over accepting $20,000.  Even allowing for inflation, that amount of money wouldn’t pay for a one-way ticket for Clarence Thomas’s “friend” Harlan Crow’s private jet to Indonesia, and now it comes out that he hasn’t reported rental income from properties he owns through another corporation.

Abe Fortas was forced to resign by the Nixon administration because they saw an opening to replace a liberal justice with a conservative one.  (Hey, Mitch, sound familiar?).   But rest assured; this won’t happen to Clarence Thomas — more’s the pity — because the Biden administration has scruples above and beyond those of the baseline GOP — not a hard reach, I grant you — and because our standards of Supreme Court ethics are, to quote Col. Sherman T. Potter, lower than a gopher’s basement.

Not for nothing, there was more than likely another reason Nixon didn’t want Mr. Fortas as chief justice: his feelings about Jewish people were well-documented.  Although there had been Jewish justices before, he wasn’t about to give the center chair to someone from a group that he believed were inherently “disloyal.”  Hey, that sounds familiar.

So, rest easy, Justice Thomas.  You’re set for the rest of your life.

Monday, April 10, 2023

Just Good Friends

I’m not surprised that Clarence Thomas took lavish vacations worth hundreds of thousands of dollars from his good friend Harlan Crow and failed to report them because A) the Supreme Court doesn’t require that justices conform to the same ethics and reporting rules that most government employees must, and B) because he sees nothing wrong with it.

According to Anne Laurie at Balloon Juice, folks who like Justice Thomas and believe in his views are lining up to support him against the “vicious attacks by the radical left media,” and the fact that Mr. Crow likes to collect Hitler memorabilia is okay, too, because doesn’t everybody?

What it says to me is that Justice Thomas, who used to say that the best vacations he and his wife Ginni, when she’s not raising half a million bucks for right-wing influencers, take are in RV’s throughout America and spending the night in WalMart parking lots, just like John Steinbeck did in Travels with Charley.  So what’s a little weekend jaunt to Indonesia on a private jet or a week with the boys at the Bohemian Grove?

If you watch enough Law & Order, you know that judges are supposed to avoid even the appearance of bias or ownership.  Clearly this sort of largess needs to be at least reported, and gifts of over $10,000 are subject to income tax.

I’m also reminded of Justices Thomas’s angry defense of his rise through the ranks from his impoverished childhood in Pinpoint, Georgia, done all on his own and his resentment of his acceptance to law school being seen as affirmative action, so this kind of nit-picking about his friendships with rich white dudes is just more high-tech lynching, right?

Yeah.  But I still believe Anita Hill.

Sunday, March 5, 2023

Sunday Reading

Danger: Slippery Slope Ahead — The New York Times on Florida’s attempts to gut the First Amendment.  It could happen everywhere.

A homeowner gets angry at a county commission over a zoning dispute and writes a Facebook post accusing a local buildings official of being in the pocket of developers.

A right-wing broadcaster criticizing border policies accuses the secretary of homeland security of being a traitor.

A parent upset about the removal of a gay-themed book from library shelves goes to a school board meeting and calls the board chair a bigot and a homophobe.

All three are examples of Americans engaging in clamorous but perfectly legal speech about public figures that is broadly protected by the Constitution. The Supreme Court, in a case that dates back nearly 60 years, ruled that even if that speech might be damaging or include errors, it should generally be protected against claims of libel and slander. All three would lose that protection — and be subject to ruinous defamation lawsuits — under a bill that is moving through the Florida House and is based on longstanding goals of Gov. Ron DeSantis.

The bill represents a dangerous threat to free expression in the United States, not only for the news media, but for all Americans, whatever their political beliefs. There’s still time for Florida lawmakers to reject this crude pandering and ensure that their constituents retain the right to free speech.

“This isn’t just a press issue,” said Bobby Block, executive director of Florida’s First Amendment Foundation. “This is a death-to-public-discourse bill. Everyone, even conservatives, would have to second-guess themselves whenever they open their mouths to speak or sit in front of a keyboard.”

The bill is an explicit effort to eviscerate a 1964 Supreme Court decision, The New York Times Company v. Sullivan. This bulwark of First Amendment law requires public figures to prove a news organization engaged in what the court called “actual malice” to win a defamation case. By preventing lawsuits based on unintentional mistakes, the decision freed news organizations to pursue vigorous reporting about public officials without fear of paying damages. The decision has even been applied by lower courts to bloggers and other speakers who make allegations about public figures.

Many conservatives, including Mr. DeSantis, have long chafed at the freedom that this decision gives to a news industry they consider to be too liberal. The new bill embodies that antagonism. It would sharply limit the definition of public figures, eliminating public employees like police officers from the category, even if they become public figures because of their actions.

It would change the definition of actual malice to include any allegation that is “inherently improbable” — an impossibly vague standard — or that is based on what it calls an “unverified” statement by an anonymous source. In fact, it says that all anonymous statements, a crucial tool for investigative reporting, are “presumptively false” for the purposes of a defamation case. Anonymous sources were the basis for much of The Washington Post’s coverage of Watergate and The Times’s exposure of the Bush administration’s domestic eavesdropping program in 2005, among many other examples of journalism with significant impact.

Under the bill, a public figure would no longer need to show actual malice to win a defamation case if the allegation against the figure wasn’t related to the reason for the person’s public status. So if a person is publicly known for being elected president or governor, and a news organization publishes an investigation about that person’s private or business life unrelated to elected office, that report would not get the special liability protection provided by the Sullivan decision.

The bill goes much further than this attempt to hobble the press. It makes it clear that the new defamation rules would also apply to any single “utterance on the internet,” which could mean a tweet or a Facebook post written by anyone, or “any one presentation to an audience,” which could include statements made at school board hearings and other public meetings.

In a direct attack on a key aspect of free expression, it says that whenever someone is accused of discriminating against others on the basis of race, gender or sexual orientation, that accusation is automatically considered enough to sue for defamation. Any person accused of bigotry based on sexual orientation or gender identity could file a defamation lawsuit and be virtually guaranteed of winning by saying the discrimination was based on personal religious or scientific beliefs. The penalty for calling someone a bigot would be a minimum of $35,000.

Mr. DeSantis, who appears to be preparing for a 2024 presidential campaign, has been railing against press freedoms for several years in a clear appeal to likely Republican primary voters. The bill was recently introduced in the Florida House by one of his allies and has a strong chance of passage; a similar if slightly milder version was filed in the State Senate.

If enacted, the House bill would almost instantly be challenged in court, but its backers are counting on that. In public statements, they have said they want the bill to be used as a vehicle to get the Supreme Court to overturn New York Times v. Sullivan and have noted that two justices, Clarence Thomas and Neil Gorsuch, have called on the court to reconsider that decision. The current court has repeatedly demonstrated that it can’t be counted on to respect long-term precedents that are widely supported by the public.

There may be room for discussion on the precise definition of “public figure,” which has been interpreted in various ways by the Supreme Court and lower courts over the past six decades. Even Justice Elena Kagan, in a 1993 journal article long before she joined the court, expressed interest in determining whether the term had been too broadly defined in the years after Sullivan, though she applauded the overall decision.

A sledgehammer bill like the one in Florida, however, wielded for transparent political reasons, would create enormous damage on the way to the high court, particularly if other states decide to copy its language. In 1964, Justice William J. Brennan Jr., who wrote the court’s opinion, said it was based on “the principle that debate on public issues should be uninhibited, robust and wide open.” That may well include, he wrote, “vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” That principle has not changed through the decades, and any citizen who treasures the right to speak freely should resist politicians like Mr. DeSantis who want to silence them.

Doonesbury — Still plotting revenge.

Wednesday, November 23, 2022

Supreme Questions

I’ve wondered why the United States Supreme Court sees itself as above the law on several important matters, including ethics and financial disclosure.  I’m not the only one.

From Charlie Pierce:

I tried to warn the chief justice, but he wouldn’t listen. And now here comes the nor’easter from Rhode Island:

On Saturday, the Chairmen released their previous correspondence with the Supreme Court about Faith and Action, and pledged to continue seeking answers and working to require the Court to adopt mandatory ethics rules in line with the other branches of the federal government. Their new letter sent yesterday evening reiterates those calls and asks new questions of Chief Justice John Roberts and the Supreme Court’s legal counsel, including whether the allegations regarding Faith and Action have been investigated internally and whether the Court has reevaluated any of its procedures related to judicial ethics. “Our previous letter identified reports of conduct by justices that increasingly appear out of line with the conduct permissible for other federal judges and, in some cases, may be inconsistent with federal law. Recent reporting by the New York Times that the orchestrators of this judicial lobbying campaign may have used their access to certain justices to secure confidential information about pending cases only deepens our concerns about the lack of adequate ethical and legal guardrails at the Court,” Whitehouse and Johnson wrote last night.

They’re coming for you, chief. Things have spun out of your control. Among other things Sen. Sheldon Whitehouse is eager to hear a little bit more about:

Has the Supreme Court opened an investigation into any of the allegations set forth in our September 7, 2022, letter, the July 2022 letter from Reverend Robert Schenck to Chief Justice Roberts, or any other allegations contained in the relevant reporting from Rolling Stone, Politico, or the New York Times? [links added] If so, please provide relevant details regarding the management of that investigation, including which individual and/or office is leading the investigation and how and on what date the investigation was launched.

Has the Court reevaluated any of its practices, procedures, or rules related to judicial ethics, or the justices’ receipt and reporting of gifts and travel, in light of the July 2022 letter from Reverend Robert Schenck to Chief Justice Roberts?

Who is responsible for policing the relationship between the Supreme Court and the Supreme Court Historical Society to ensure that paid membership in the Society is not used as a means of gaining undue influence?

It may assist the resolution of these issues if the Court were to designate an individual knowledgeable about them to provide testimony to us about the existence or not, and the nature if they exist, of any procedures that guide inquiry, investigation and determination of factual issues related to ethics or reporting questions raised about justices’ conduct.

That last part is the sound of the hunter’s horn. If Roberts won’t come to them, they’ll settle for an ambassador, as long as they’re satisfied the ambassador is empowered to deal. The truly ironic thing is that, in any fight between the court and the Congress, Roberts’ staunchest institutionalist allies may wind up being Justices Sotomayor, Kagan, and Jackson. They truly respect the institution the way he allegedly did once. They recuse themselves from cases in which their participation might be improper (Jackson was barely settled in her chair when she had to take herself out of judging a case about Harvard’s admissions policy because of her long connection to that university). It’s obvious that Roberts can’t rely on Alito or Thomas, who’d sell him cheap to Malay pirates; they wouldn’t be protecting the court, they’d be protecting themselves. Kavanaugh is far from a rock in that regard, too. Gorsuch might be a wild card on whom Roberts could lean. Barrett would jump at shadows.

Roberts has to know that his entire legacy as chief justice is on the line right now. Smart people once told me that mattered to him.

Finley Peter Dunne (1867-1936), through his popular Mr. Dooley, noted that while most courts follow the Constitution, the Supreme Court follows the election returns.  And now it’s more apparent that it follows the money.

Tuesday, June 28, 2022

Be Careful What You Pray For

I’m not at all surprised that the Supreme Court ruled 6-3 that it was okay for a coach to lead a Jesus prayer circle on the fifty-yard line of a public high school football field after a game.

The Supreme Court ruled Monday that a school board in Washington state discriminated against a former football coach when it disciplined him for postgame prayers at midfield, the high court’s latest decision favoring the protection of religious faith over concerns about government endorsement of religion.

Justice Neil M. Gorsuch wrote for fellow conservatives in the 6-to-3 decision, saying Bremerton High School assistant coach Joseph Kennedy’s prayers are protected by the Constitution’s guarantees of free speech and religious exercise. He said the school board’s discipline of Kennedy was unwarranted, even under the concern of violating the separation of church and state.

“Respect for religious expressions is indispensable to life in a free and diverse Republic — whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head,” Gorsuch wrote. “Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected” by the Constitution.

Gorsuch was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Amy Coney Barrett. Justice Brett M. Kavanaugh joined most of the opinion.

The court’s three liberals dissented, as they had in last week’s ruling that Maine cannot bar religious schools from receiving public tuition grants extended to other private schools.

Justice Sonia Sotomayor wrote that the majority “elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.”

Joined by Justices Stephen G. Breyer and Elena Kagan, Sotomayor added: “Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection.”

I would like to see what would have happened if the coach was a Muslim and put down a prayer rug and faced Mecca. Or if he had stood in the middle of the field and chanted from the Torah. Or even brought out a folding chair and sat in silence as Quakers do. Let’s see what happens when the Satanists or the Wiccans get together on the field.

I can’t prove it, but I’m pretty sure the ruling would have gone the other way.

Monday, June 27, 2022

Pretty Sure He Meant It

From Salon:

On Saturday morning, Texas Senator John Cornyn tweeted a racist comment along with a share of former President Barack Obama‘s statement regarding Friday’s Supreme Court ruling to reverse Roe v. Wade.

Obama, making his statement on Twitter on Friday morning shortly after the ruling was handed down, said “Today, the Supreme Court not only reversed nearly 50 years of precedent, it relegated the most intensely personal decision someone can make to the whims of politicians and ideologues—attacking the essential freedoms of millions of Americans.”

The following morning, Cornyn shared that statement from Obama to his own Twitter account adding “Now do Plessy vs Ferguson/Brown vs Board of Education.”

Brown v. Board of Education, ruled on by the Supreme Court in 1954, did historical justice in wiping away the 1896 Plessy v. Ferguson ruling, making “separate but equal” rightfully unconstitutional.

Following Cornyn’s initial tweet, which received tremendous heated backlash, he fired off another one saying “Thank goodness some SCOTUS precedents are overruled.”

“Let’s help out less intelligent fellow Americans out,” one commenter said in response to Cornyn’s initial tweet. “Plessy stood as law of the land longer than Roe. That was [John Cornyn’s] point. Now if liberals are arguing Brown v. Board of Ed was wrongly ruled because of long standing precedent, then they should openly say so.”

Oh, I get it.  His commenter is saying it’s not about reinstating Plessy and overturning Brown; oh no, it just means that some long-standing precedents can be overturned and it’s about time, too.  It has nothing to do with segregation; how can you even think that?  Uh huh.

I don’t know how anyone could read Mr. Cornyn’s initial tweet and not think that he was advocating overturning Brown v. Board of Education.  If he is advocating overturning long-standing precedents, there are a bunch of  rulings that he could have brought up, such Citizens United v. FEC, that unleashed corporate money on political campaigns, or District of Columbia v. Heller, which turned the Second Amendment into a permit for the O.K. Corral on the streets of America.  But he went with the ruling that finally ended racial segregation in public schools; a ruling that was harmless in its nature and its intent and affirming a right to equality that had been denied.

It’s my nature to give someone at least the benefit of the doubt and see how he and his supporters try to get out of the impression that the gentlebeing from Texas isn’t advocating a return to segregation in the schools.  After all, the Texas Republican Party voted last week to support a plank in their platform calling for the repeal of the 1965 Voting Rights Act.  So I’d love to hear his explanation.

But the cynic in me — and it’s been getting a workout recently — is pretty sure he meant what he said.

Sunday, June 26, 2022

Sunday Reading

When A Right Is Taken Away — Jeannie Suk Gersen in The New Yorker.

We have known for some time that this Supreme Court’s manifest destiny was to overrule Roe v. Wade. Now it has fulfilled it. In the ruling in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito, writing for a five-Justice majority, eliminated the constitutional right to abortion and handed the states the power to restrict the procedure as they wish. There was little suspense, owing to a leak of the draft opinion last month, from which the Court’s final opinion is not substantially different, but the decision still came down as a surreal shock. The three liberal Justices dissented “with sorrow—for this Court, but more importantly, for the many millions of American women who have today lost a fundamental constitutional protection.”

As expected, Chief Justice John Roberts declined to join his conservative colleagues’ opinion, and concurred only in the judgment to uphold the challenged Mississippi law, which bans most abortions after fifteen weeks. Calling the Court’s overruling of Roe “unnecessary to decide the case,” Roberts would instead have allowed states to ban abortion sometime before fetal viability, but would also have reaffirmed a right to abortion that would “ensure a reasonable opportunity to choose.” That more moderate position might have been the Court’s ruling had Ruth Bader Ginsburg not died during the Trump Presidency and been replaced with Amy Coney Barrett, or had the Senate acted on President Obama’s nomination of Merrick Garland, instead of waiting to install Trump’s eventual nominee, Neil Gorsuch. And, had neither of those events occurred, we would still have a constitutional right to abortion in the United States.

The difference between preserving and eliminating a long-held constitutional right involves a crude reality of political machinations and contingency in filling these seats—which makes it galling to read the Court’s righteous condemnation of Roe v. Wade as an exercise of “raw judicial power,” and its self-portrayal as a picture of proper judicial restraint. It is hard to imagine something more like an exercise of raw judicial power than the Court’s removal of the right to abortion, which is precisely what these Justices were put on the Court to achieve. As the dissent put it, the Court is “rescinding an individual right in its entirety and conferring it on the State, an action the Court takes for the first time in history.”

Some have speculated that last month’s draft-opinion leak was intended to make it difficult for Justice Brett Kavanaugh to defect from the majority and join the Chief Justice’s compromise position. Kavanaugh didn’t defect, but he did write a notable concurrence that seemed to take some distance from the possible perceived extremity of the majority. It confirmed that he is the Justice whom the majority will need to worry about keeping on board if they wish to go further than Dobbs in the future.

Kavanaugh flexed this muscle by addressing questions about decisions that may come after Dobbs. “The Constitution neither outlaws abortion nor legalizes abortion,” he wrote. As a result, “this Court does not possess the authority either to declare a constitutional right to abortion or to declare a constitutional prohibition of abortion,” he proclaimed, and in so doing seemed to indicate that a possible future development—the eventual enshrining of a constitutional right of the fetus—is not something for which he would provide a fifth vote. Similarly, regarding the constitutional rights to contraception and same-sex marriage, Kavanaugh made a point of emphasizing, with italics, that “overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” Additionally, he expressed his view that a state may not bar its residents from travelling to another state for an abortion, because of the constitutional right to interstate travel. To the extent that anyone is grasping for a silver lining, Kavanaugh appears to want us to know that he personally intends to—and can—stand in the way of a post-Dobbs parade of horribles, even if his colleagues might want to go there.

And at least one of his brethren plainly does want the Court to go there. Justice Clarence Thomas’s separate concurrence made crystal clear that he would indeed do away with the entire substantive due-process doctrine on which the right to abortion rested, and that would mean eventually sweeping away the rights to contraception, same-sex intimacy, and same-sex marriage. He referred to the fact that the Court used substantive due process in Dred Scott v. Sandford to affirm the right of enslavers to enslave people, and he concluded that “the harm caused by this Court’s forays into substantive due process remains immeasurable.”

Thomas’s comments contradict the majority opinion he signed, in which the Court claimed that other rights protected by the Court’s substantive due-process precedents are safe, the reason being that only abortion involves an interest in the life of a fetus. The Dobbs ruling’s insistence that the Court should not impede states from making policies in which they weigh the interest in life for themselves, through their democratic processes, is tragicomic, even gruesome, coming the very day after the Court did just that in striking down a New York State gun-licensing law, based on the Court’s expansion of an individual right to bear arms under the Second Amendment.

In Planned Parenthood v. Casey, the plurality that reaffirmed Roe v. Wade wrote that “liberty finds no refuge in a jurisprudence of doubt”—meaning that, if the public is in doubt about whether constitutional rights are in danger of disappearing, that is not liberty. Dobbs leaves no doubt that the federal constitutional right to abortion is gone. And it ushers in an era of grave doubt about the status of liberty in the United States.

Doonesbury — 1-800-SHYSTER

Friday, June 24, 2022

Roe v. Wade Overturned

Not unexpected. Still shameful.

WASHINGTON — The Supreme Court on Friday overruled Roe v. Wade, eliminating the constitutional right to abortion after almost 50 years in a decision that will transform American life, reshape the nation’s politics and lead to all but total bans on the procedure in about half of the states.

The ruling will test the legitimacy of the court and vindicate a decades-long Republican project of installing conservative justices prepared to reject the precedent, which had been repeatedly reaffirmed by earlier courts. It will also be one of the signal legacies of President Donald J. Trump, who vowed to name justices who would overrule Roe. All three of his appointees were in the majority in the 6-to-3 ruling.

The decision, which echoed a leaked draft opinion published by Politico in early May, will result in a starkly divided country in which abortion is severely restricted or forbidden in many red states but remains freely available in most blue ones.

Chief Justice John G. Roberts Jr. voted with the majority but said he would have taken “a more measured course,” stopping short of overruling Roe outright. The court’s three liberal members dissented.

What’s next in terms of overturning precedent?  Brown v. Board of EducationGriswold v. ConnecticutLoving v. VirginiaObergefell v. Hodges?

Women, your body is now owned by the state.

Sunday, May 15, 2022

Sunday Reading

That’s Original — Fabio Bertoni in The New Yorker on Samuel Alito’s  idea of originialism.

Twenty years ago, when my kids were little, and we went on long drives, my wife and I would play an audiotape of the Amelia Bedelia stories, by Peggy Parish, to keep them occupied. Amelia Bedelia is a housekeeper who goes to work for a rich couple. They give her instructions—dust the furniture, draw the drapes, put out the lights—that Amelia, being extremely literal-minded, interprets exactly the wrong way. She pours dust on the furniture; draws a picture of the drapes; puts all the lights outside. The couple comes home to the chaos, and resolves to fire poor Amelia—until they taste a pie that she has made. It is so delicious that they can’t bear to let her go.

Our kids loved the wordplay and, of course, the foolish adults. They got the joke. After several hundred listenings, however, it dawned on me: Amelia Bedelia, as others have noted, knows precisely what she is doing. She’s an anarchist, an agent of chaos, and is intentionally punishing the rich couple for some conduct deep in the untold backstory of the series. No reasonable person can use words that literally, with no awareness of how words can have multiple meanings. Even children know that the phrase “catch the school bus” doesn’t refer to grabbing a large yellow vehicle flying through the air. Amelia Bedelia, a functioning adult who manages to get to work each day, surely also understands the figurative use of language, and is simply pretending not to in order to achieve her own nefarious ends.

As a then-recent graduate of law school, I soon had another realization: this narrow focus on a certain understanding of words, to the exclusion of all others, is a close cousin to originalism, a distinctly conservative strain of thinking in constitutional law that was championed and popularized by the late Supreme Court Justice Antonin Scalia. Originalists argue that their thinking is uniquely rigorous and coherent. They believe that it is possible, even imperative, to identify the proper meaning and interpretation of the Constitution by adhering strictly to the text and to the intentions of the men who wrote it. Originalists scoff at the notion of a “living Constitution,” a document whose meaning has changed and expanded with time and evolving circumstances. Only softheaded liberals, they say, believe that due process encompasses foggy notions and words unmentioned in the Constitution—words such as “privacy.” If something isn’t specifically articulated in the Constitution, any attempt to find it there is entirely speculative—or, as Justice Scalia put it, “pure applesauce.”

By the nineteen-eighties, originalism had become the dominant legal ideology of the right. It allowed conservative legal scholars and judges to claim a higher ground of objectivity and neutrality: they were simply applying what the Framers intended when they wrote the document. Conversely, it enabled them to label federal judges who sought to expand rights or powers of the Constitution as “activist judges”—effectively, as unelected legislators who would bend the language of the Constitution, in order to reshape society to fit a vision of liberal utopia.

But the recently leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, written by Supreme Court Justice Samuel Alito, and an earlier federal decision by Judge Kathryn Kimball Mizelle, in Florida, outlawing the federal mask mandate on airplanes, reveal the dishonesty inherent in the originalism idea. In fact, it appears that, much the way that many Republicans are dropping any pretense of civil decorum or anti-bigotry in order to appeal to radical elements of the base, many conservative judges are leaning into the bare-knuckled, results-oriented jurisprudence to take them in the direction that they want to go: backward.

Justice Alito, in his draft opinion, argues that, because he can find no reference to abortion in the Constitution, and because there was no widely established right to abortion in 1868, at the time of ratification of the Fourteenth Amendment (which contains the due-process clause that Roe v. Wade holds includes the right to privacy), there is no basis for finding that the Constitution protects any such right. That’s not what “due process” means, Alito maintains, because it’s not reflected in the historical record he selectively cites. Like Amelia Bedelia, he latches onto a specific, fixed meaning within the Constitution, and refuses to consider any broader possible meaning. And while, strictly speaking, Amelia Bedelia may be more of a textualist (relying solely on the words themselves) than an originalist (seeking to understand what the words meant at the time that they were used), the utter disregard for destructive outcomes is the same.

What’s clear now is that the destruction is the intent. Originalism is just a clever trick of perspective. If you narrow your vision to look only for specific words that people used when the Constitution was drafted, you will always be engaged in a process of halting progress beyond that moment in time. Was there gay marriage in 1868? No? Well then, due process obviously doesn’t protect any right to marriage equality. You freeze recognition of rights as of the nineteenth century, while claiming to be neutrally applying interpretive principles to reach that conclusion. Of course, in order to achieve this result, you absolutely may not widen the perspective to consider the ultimate goals inherent in the Constitution. The question of whether the Framers (or the Constitution itself) contemplated an idea of securing the right to bodily autonomy is prohibited. Don’t ask whether it makes sense to apply eighteenth-century notions of personhood to a twenty-first-century country. Ask only whether the Constitution mentions “abortion.”

Alito, of course, already knew the answer to that—we all did. Both the question, and the analysis, are disingenuous. His ninety-plus-page opinion, citing some ancient (and bizarre) sources, merely attempts to obscure it. That is the point of originalism, and it explains why so many right-wing lawyers and judges cling to it. The solutions to complex issues are rendered simple, predetermined. In other words, originalism is not neutral and never has been. It is a political tool designed to halt progress.

Originalists argue that it’s not their fault that the drafters may have been slaveholders, or uniformly male, or white, or without any knowledge of contemporary technology or a more inclusive notion of humanity. Them’s the breaks; mere accidents of history. Or they argue that they are only interpreting the law as written. If you want to change the law, they say, that’s the role of the legislature, not the judiciary. But that, too, is a profoundly dishonest response. To say that is to say that the Dred Scott case was correctly decided when it was written, in 1857. At that time, as Justice Roger Taney wrote, Black people “had no rights which the White man was bound to respect.” That holding is now universally regarded as one of the most shameful in Supreme Court history. It is an object lesson in the misapplication of legal principles to profoundly inhuman ends. Black Americans should have been entitled to full citizenship, and to all the protections of the Constitution, from the moment the country was founded. Our legal system, however, didn’t recognize their rights, and that failure is the great crime of this country’s founding. The logic of originalism, as expressed in Alito’s draft opinion, would mean that Black Americans should not have been entitled to citizenship, or to their full humanity, until the civil-rights amendments said so. To say that the law is correct because it’s what the law says, is, at best, circular, and, in many instances, monstrous.

And, as Judge Mizelle’s ruling in Florida shows, crafting legislation that overcomes conservatives’ determined misreading of it is virtually impossible. Mizelle, a Trump appointee, held that the Centers for Disease Control and Prevention had exceeded its authority in issuing a mask mandate on airplanes, because the law creating the C.D.C. only authorizes the agency to issue public-health regulations regarding “inspection, fumigation, disinfection, sanitation, pest extermination,” and the destruction of infected or contaminated “animals or articles.” Mizelle reasoned that because masks don’t do any of those things—they don’t fumigate, or disinfect, or sanitize; they merely trap particles containing the virus—the C.D.C. has no authority to require passengers to wear them. The question, according to Mizelle, is not whether masks are effective in preventing the spread of COVID-19 across state lines, or whether they are still necessary as a policy matter. It is whether the statute grants the C.D.C. the authority to have an opinion about masks in the first place. Notwithstanding the fact that it’s right there in the name (Centers for Disease Control), Mizelle says that the words of the statute don’t cover masks. Originalism told her so.

With regard to bodily autonomy, women must be entitled to it, irrespective of whether the Constitution explicitly provides for it. If not, why should we believe Justice Alito’s assertion, in his draft opinion, that overturning Roe would not affect contraception, or gay marriage, or interracial marriage—all of which depend on an understanding of notions of autonomy, or privacy, that fall within “due process”?

Some legal scholars and judges question whether the due-process clause is the best vehicle for protecting privacy. Perhaps, instead, it is the Tenth Amendment, which suggests that there are rights unmentioned in the Constitution that are reserved “by the people.” But, without some constitutional protection for bodily autonomy, or privacy, which would cover these profoundly personal issues, what is there to prevent the state from, say, requiring you to give up a kidney in order to save someone else’s life? Would Alito argue that, because the Constitution is silent on compulsory kidney donation, it’s not prohibited? Isn’t that the flip side of requiring someone to carry a fetus to term unwillingly (and often at risk of illness or death)? If a surgeon were to show up on an originalist’s doorstep with a scalpel and a cooler filled with ice, I doubt that originalist would just sigh and lift his shirt.

Surely, then, the right to bodily autonomy, or privacy, is inherent in the essential freedoms contained in the Constitution. None of the other rights—such as the First Amendment right to the “freedom of speech,” or “peaceably to assemble,” or the Fourth Amendment right of the people to be “secure in their persons”—make sense without a right to control our bodies. But the denial of rights is the point. The originalist project is not the neutral application of interpretive principles but an effort to thwart progress at all costs. The result will always be that some Americans will forever be struggling to catch up with the rights that others have had from the very start.

Doonesbury — On the job.