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“Trump Flunks Supreme Court Arithmetic”: Counting To Five Should Be Pretty Easy, Unless You’re Donald Trump

For the typical adult, counting to five should be pretty easy. It makes Donald Trump’s trouble with Supreme Court arithmetic that much more puzzling.

On Monday, the Supreme Court handed down arguably the most important abortion-rights ruling in a generation, prompting the Republican presidential hopeful to say … literally nothing. To the consternation of some of his social-conservative allies, Trump acted as if the court’s decision didn’t exist, offering no response in speeches, interviews, or social media.

It took a few days, but this morning the presumptive GOP nominee broke his unexpected silence in an interview with conservative radio host Mike Gallagher.

“Now if we had Scalia was living, or if Scalia was replaced by me, you wouldn’t have had that, OK? It would’ve been the opposite.”

Actually, no, it wouldn’t have. This week’s ruling was actually a 5-3 decision. Yes, Antonin Scalia’s passing meant the Supreme Court was down one justice, but it doesn’t take a mathematician to know 3 +1 does not equal 5.

Remember, the decision was on Monday, and today’s Thursday. Trump and his team had three days to come up with the candidate’s response to a major court ruling, and this is what they came up with.

In the same interview, the New York Republican complained about Chief Justice John Roberts, telling the host, “He could’ve killed [the Affordable Care Act] twice and he didn’t. That was terrible. And that was a Bush appointment. That was so bad, what happened. And you know, to me, you know, almost not recoverable from his standpoint. Very, very sad situation.”

Actually, the second time the justices considered the constitutionality of “Obamacare,” the law was upheld in a 6-3 ruling. When Trump said today Roberts “could’ve killed” the ACA, his math is still wrong – because 6 – 1 does not equal four.

Do you ever get the impression that Trump hasn’t really thought this issue through? Ever wonder if there’s an issue he has thought through?

Postscript: Trump’s math troubles notwithstanding, the GOP candidate, who used to describe himself as pro-choice, continues to talk about how eager he is to restrict reproductive rights. In this morning’s interview, the host added, “So just to confirm, under a Donald, a President Donald Trump-appointed Supreme Court, you wouldn’t see a majority ruling like the one we had with the Texas abortion law this week.”

The candidate replied, “No, you wouldn’t see that.”

 

By: Steve Benen, The Maddow Blog, June 30, 2016

July 5, 2016 Posted by | Donald Trump, John Roberts, Reproductive Choice, U. S. Supreme Court | , , , , , , | Leave a comment

“An Unholy Trinity For Discrimination”: Far-Right Justices Warn Of ‘An Ominous Sign’

The state of Washington has a law that requires pharmacies to dispense medications, even if individual pharmacists have religious objections. One family-owned pharmacy challenged the law in court, saying it shouldn’t be required to sell emergency contraception, which the pharmacy’s owners consider immoral.

An appeals court sided with the state, and the case was appealed to the U.S. Supreme Court. Yesterday, the justices announced they would not hear the case, which has the effect of leaving the lower court’s ruling intact.

And while that would ordinarily be the end of the dispute, yesterday offered a bit of a twist. The Supreme Court said it wouldn’t hear the appeal out of Washington, but at the same time, Justices Samuel Alito, John Roberts, and Clarence Thomas released an angry rebuttal, saying they not only wanted to hear this case, they also consider the majority’s disinterest in the matter to be “an ominous sign.”

MSNBC’s Irin Carmon highlighted yesterday’s “unusual” statement.

“This case is an ominous sign,” Alito wrote in an unusual, 15-page response to the court refusing to hear Stormans v. Wiesman…. “If this is a sign of how religious liberty claims will be treated in the years ahead,” Alito continued, sounding a lot like a man who foresees a bleak future for his side, “those who value religious freedom have cause for great concern.”

No, actually, they almost certainly don’t.

As is always the case, especially in Supreme Court disputes, the details matter. In Washington, state law still allows individual pharmacists to raise religious objections to helping a customer, so long as some other employee can step in and provide the prescribed medication. The plaintiffs in Stormans v. Wiesman, however, wanted to go much further – refusing to stock Plan B altogether, regardless of public needs.

The state’s policy is based on the entirely reasonable idea that consumers should have access to medications that are safe and legal, and pharmacies shouldn’t have the authority to simply turn people away. The far-right trio on the high court obviously disagree, and Slate’s Mark Joseph Stern explained the broader implications of their dissent.

…Alito, Thomas, and Roberts seem to believe that, under the Free Exercise Clause of the First Amendment, states are proscribed from requiring for-profit religious businesses to treat all customers equally. If this unholy trinity ever managed to rewrite the First Amendment this way, they could effectively bar states from protecting women, gays, and other minorities from religious-based discrimination. […]

Neither [Alito], Roberts, nor Thomas thinks refusal of service is a big deal when patients can hop back in their cars (presuming they have them) and drive to the nearest pharmacy that will deign to provide them with the proper medication. (Live in rural Washington? Hope you can find another pharmacy before the Plan B window closes!)

This cavalier dismissal of women’s interest in nondiscrimination flies in the face of precedent. The court used to say that when a religious accommodation burdens other people’s rights, the accommodation itself violates the separation of church and state. Now Alito wants to push that rule through the looking glass, arguing that there’s a possibility states must give religious employers the right to burden others – a burden that will fall disproportionately on women and gays.

Keep in mind, if four justices agree to hear a case, the Supreme Court takes the case. Were it not for Antonin Scalia’s passing, it’s very likely Stormans v. Wiesman would be on its way towards oral arguments.

 

By: Steve Benen, The Maddow Blog, June 29, 2016

June 29, 2016 Posted by | Discrimination, Religious Liberty, U. S. Supreme Court | , , , , , , | Leave a comment

“Strange Justice, Indeed”: The Day Clarence Thomas Gained Power, He Lost Dignity

Should he stay or should he go?

The wife of Supreme Court Justice Clarence Thomas may have denounced the rumor that the controversial conservative may be planning to leave the bench next year, but that doesn’t necessarily mean the rumor is false. If Thomas does decide to call it a career in 2017, it will bring an end to one of the greatest legal tragedies in modern American history.

As Thomas noted in his 2007 memoir, My Grandfather’s Son, there was a time when he was on the left side of the political spectrum, even voting for George McGovern in 1972. The ultimate catalyst for his shift to the far right was when he began to question the logic of federal desegregation programs, which made him a receptive audience for the pseudo-intellectualism of syndicated columnist and wingnut icon Thomas Sowell in the mid-1970s:

I felt like a thirsty man gulping down a class of cool water. Here was a black man who was saying what I thought–and not behind closed doors, either, but in the pages of a book that had just been reviewed in a national newspaper…It was far more common in the seventies to argue that whites, having caused our problems, should be responsible for solving them instantly, but while that approach was good for building political coalitions and soothing guilty white consciences, it hadn’t done much to improve the daily lives of blacks. Sowell’s perspective, by contrast, seemed old-fashioned, outdated, even mundane–but realistic. It reminded me of the mantra of the Black Muslims I had met in college: Do for self, brother.

My Grandfather’s Son is a morbidly fascinating work, one that provides insight into the odd personality that has occupied Thurgood Marshall’s seat on the High Court for over two decades. Indeed, this Friday marks the twenty-fifth anniversary of President George H. W. Bush’s nomination of Thomas to the Court.

In My Grandfather’s Son, Thomas wrote that prior to the announcement of his nomination, Bush promised him, “Judge, if you go on the Court, I will never publicly criticize any of your decisions.” One wonders if Bush privately regrets making such an awful nomination, just as he openly regrets the rise of Donald Trump. Remember when the 41st President referred to Rachel Maddow and Keith Olbermann as “sick puppies”? Considering the horrible votes he has cast over the past 25 years, that term is far more applicable to Thomas.

One also wonders if Thomas will ever take a hard look at his legacy once he steps down from the bench. Had Thomas never fallen for Sowell’s shtick, perhaps he would have gone on to become one of America’s great champions of civil rights, as opposed to an explicit enemy of equality. Maybe Thomas didn’t deserve some of the harsh race-based insults he received over the years–after all, no one ever accused Antonin Scalia of being a self-hating Italian-American–but he certainly deserves strong criticism for his profoundly bizarre interpretation of the Constitution, most recently on display in Utah v. Strieff. (Justice Sonia Sotomayor’s dissent was seemingly written to challenge Thomas to confront the real-world implications of his disregard for the Fourth Amendment, or to suggest that one day, Thomas will have to face those very implications firsthand.)

It is interesting to note that in My Grandfather’s Son, Thomas actually admitted that the Republican Party he chose to embrace after being seduced by Sowell’s sentences didn’t have much use for African-Americans. Describing his days as head of the Equal Employment Opportunity Commission during the Reagan administration, Thomas observed:

Too many of [President Reagan’s] political appointees seemed more interested in playing to the conservative bleachers–and I’d come to realize, as I told a reporter, that ‘conservatives don’t exactly break their necks to tell blacks that they’re welcome.’ Was it because they were prejudiced? Perhaps some of them were, but the real reason, I suspected, was that blacks didn’t vote for Republicans, nor would Democrats work with President Reagan on civil-rights issues. As a result there was little interest within the administration in helping a constituency that wouldn’t do anything in return to help the president. My suspicions were confirmed when I offered my assistance to President Reagan’s reelection campaign, only to be met with near-total indifference. One political consultant was honest enough to tell me straight out that since the president’s reelection strategy didn’t include the black vote, there was no role for me. 

Clarence Thomas is 68 years old. He knows what his national reputation is. He knows that for many Americans, he is a symbol of extreme ideology and extreme ambition. He knows that the day he gained power, he lost dignity. When he leaves the bench, how will he live with himself?

 

By: D. R. Tucker, Political Animal Blog, The Washington Monthly, June 26, 2016

June 29, 2016 Posted by | Clarence Thomas, Conservatives, Right Wing Extremisim, U. S. Supreme Court | , , , , , , | Leave a comment

“Reckless Conduct”: The Supreme Court Just Affirmed That Domestic Violence Vacates Gun Rights; Here’s Why That’s So Important

It was a busy morning for for the Supreme Court. On Monday, the court struck down a Texas law that required Texas abortion clinics to have “admitting privileges,”and to be built up to hospital standards — even though neither make abortions much safer. It also reversed the bribery conviction of former Virginia governor Bob McDonnell.

The court also decided an important case for the future of America’s gun death epidemic. In a 6-2 vote — a notable tally on the evenly ideologically divided bench — the court ruled in Voisine v. United States that domestic violence, even unintentional or “reckless” violence, still justifies limiting access to guns. As Justice Elena Kagan wrote in her opinion, “Reckless conduct, which requires the conscious disregard of a known risk, is not an accident: It involves a deliberate decision to endanger another.”

The details of the case are fairly thorny: The court ruled that all sorts of domestic violence, even cases in which the abuser simply “consciously disregard[ed]” the effects of his or her actions, in addition to those cases in which violence was committed “knowingly or intentionally”, are grounds for precluding access to guns.

But the effects of the case are vast: Thirty-four states and the District of Colombia have defined the Lautenberg Amendment, the legislation governing the dispute in question, as including “reckless” instances of domestic violence as grounds for prohibition of gun ownership. This decision expands that standard nationwide, broadening the definition of the only federal misdemeanor that prohibits firearm or ammunition possession.

After the Orlando massacre, as politicians and concerned citizens nationwide strained to find an answer for the kind of mass-casualty hate crime Omar Mateen carried out, a small handful pointed out an obvious red flag: Mateen was an extremely abusive romantic partner.

And although he had no criminal record in adulthood, as details about Mateen’s past became more widely available, so too did the argument that domestic violence is often a predictor of gun violence. Huffington Post reported today:

Domestic violence and guns are known to be a deadly combination. Experts say that if an abuser has access to a gun, victims are five times more likely to be killed. A study published earlier this year found that simply living in a state with a high rate of gun ownership increases a woman’s chance of being fatally shot in a domestic violence situation.

There is more than can be done to keep guns out of the hands of domestic abusers, including requiring the subjects of restraining orders to temporarily turn in their weapons, and taking guns from accused domestic abusers awaiting trial.

But the court’s decision today emphasizes one of the most overlooked truths of gun violence in the United States: Victims often personally know perpetrators.

Of women murdered by men, 93 percent in 2014 were killed by someone they knew — and the majority were intimate partners of their killers. More than half of women killed with guns in 2011 were killed in domestic disputes. And, according to a study of every available mass shooting between January 2009 and July 2014, 57 percent of them involved the killing of a family member or a current or former intimate partner of the shooter.

 

By: Matt Shuham, The National Memo, June 27, 2016

June 28, 2016 Posted by | Domestic Violence, Gun Deaths, Gun Ownership, Gun Violence, U. S. Supreme Court | , , , , | Leave a comment

“21st Century Assault Weapons And 18th Century Muskets”: Why The Next Supreme Court Is Poised To Roll Back Gun Rights

While Congress remains stymied by Republican opposition to any gun regulations, there are four reasons to think that the court system, and the Supreme Court in particular, may be evolving: Orlando, changes in the Court, and two recent court cases.

Remember that the NRA’s understanding of the Second Amendment is an extremely recent phenomenon. For more than 200 years, the legal and scholarly consensus was that, in the absence of a standing army, the Second Amendment was designed to enable states and localities to maintain a “well-regulated militia” by placing muskets and other weapons in the hands of local citizens.

Then came three decades of conservative political activism, focused on law schools, the National Rifle Association, and conservative think tanks. This effort culminated (but by no means concluded) with the 2008 case of D.C. v. Heller, which the Supreme Court found, for the first time, an individual right to gun ownership in the Second Amendment.

This view is now the dogma of tens of millions of Americans, propped up by an entire industry of selective histories and scholarship that can usually be traced back to the handful of philanthropists who paid for it. Indeed, the preamble of the Second Amendment has been written out of the Constitution to the point where the NRA’s national headquarters has a frieze engraved on a wall bearing only the second clause of the amendment, “the right of the people to bear arms shall not be infringed.”

Despite the fervency with which some hold that belief, however, it is very shaky as a judicial matter—and recent signs suggest it may collapse entirely. First, of course, is the Orlando massacre, the latest mass shooting to horrify America. While the Right has, of course, blamed the shooting solely on Islamic terrorism, it seems clear to most people that it was due to a combination of terrorism, homophobia, the personality of the shooter, and access to guns. Without the AR-15-style rifle, the shooter would likely not have killed 49 people.

The Orlando massacre doesn’t have any formal judicial meaning. But Supreme Court justices are also human beings, and it’s hard to see it not impacting how they view the relationship between 21st century assault weapons and 18th century muskets.

Second, there is the shift in the Court’s own membership. The Heller opinion was written by the late Justice Antonin Scalia for a 5-4 majority. That majority is now gone.

Interestingly, we know next to nothing about how a Justice Merrick Garland might vote on gun control. Contrary to the insinuations of Bill O’Reilly and other conservative talking heads, Judge Garland did not vote to uphold the District of Columbia’s gun law that was ultimately overturned in Heller; he only voted for the entire appeals court to hear the case, rather than just a three-judge panel. (One of the appeals court’s most conservative members voted the same way—but they were outvoted.) We have no clue of his view of the Second Amendment, and his more moderate outlook in general means that anything is possible.

Still, Garland is no Scalia—and if he isn’t confirmed, whoever President Hillary Clinton nominates is likely not to be a Garland-style moderate either. So the pendulum may swing back on gun rights simply as a function of the Court’s membership.

Two lesser-known developments, though, may be even more telling.

The first of these is that the Supreme Court decided not to hear an appeal brought by a challenger to a state’s assault weapons ban, upholding the gun-control law. This may mean many things: maybe a majority of justices think the appeals court got it right, or maybe they don’t see enough of a conflict among the circuit courts, or maybe they think this case isn’t the best test case to take, or maybe the short-handed court is limiting its workload, or who knows—it could be anything.

But at the very least, it means the Court does not see the ban as a horrifyingly unconstitutional travesty that requires immediate judicial remedy. Contrast that with two of the cases still outstanding this year: Texas’s challenge to the Obama administration’s immigration policies, and Texas’s defense of its abortion clinic regulations. The Court not only took these two cases but issued (or upheld) injunctions on the enforcement of the challenged rules.

Not so in the assault weapons ban case.

Finally, there’s a case from the Ninth Circuit Court of Appeals, decided earlier this month, that provides some of the best intellectual rationale for limiting, if not overruling, Heller.

That case, Peruta v. City of San Diego, dealt with California’s strict requirements to obtain a “concealed carry” permit. (They are only available to limited groups of people, such as guards, messengers, hunters, or target shooters.) Do those requirements violate the Second Amendment? The Ninth Circuit, by a vote of 8 to 3, said no.

Writing for the court, Judge William Fletcher wrote an extensively researched originalist opinion worthy of Justice Scalia himself. Expressly avoiding the question of whether the Second Amendment gives citizens a right to carry weapons openly in public (a question left open by Heller as well), Judge Fletcher’s opinion focused on whether there is a Second Amendment right to carry concealed weapons.

To answer the question, he turned Scalia’s logic against him. The Heller opinion refuted the plain meaning of the constitutional text on the grounds that it codified a “pre-existing right” to bear arms for self-defense, not just for use in a militia. (That the opinion was by a self-proclaimed strict constructionist was an irony not lost on liberal commentators.) Thus the question became whether there was a “pre-existing right” (in America or pre-colonial England) to carry a concealed weapon in public.

And the answer was obvious: not in the least. On the contrary, English common law, colonial regulations, and state statutes dating back as far as the year 1299 prohibited carrying a concealed weapon. (That 1299 regulation provided that sheriffs prohibit anyone from “going armed within the realm without the king’s license.”) The masterful opinion cited English laws and opinions from 1299, 1304, 1308, 1328, 1388, 1419, 1444, 1541, 1594, 1613 (“bearing of Weapons covertly… hath ever beene… straitly forbidden”), 1686, 1694, 1716, and 1782; and American state cases and statutes from 1822, 1833, 1840, 1842, 1846, 1850, 1868, 1871, 1875, 1876, 1879, 1885, 1889, 1890, 1891, 1897, and 1899—all of which, save a single outlier (Kentucky, 1822), upheld bans on carrying a concealed weapon even in the face of general rights to own or carry firearms in general.

Applying the Supreme Court’s own methodology, the Ninth Circuit reached the obvious conclusion: whatever the Second Amendment does protect, it does not protect concealed-carry rights. Thus the California law is constitutional.

Along the way, the Ninth Circuit, while bound to respect Heller, seriously limited its application. It would not be logically difficult to extend an individual gun right to a right to concealed carry, but Heller was not a logical opinion; it was an historical one. In its view (similar, incidentally, to the conservative dissents in the same-sex marriage cases), history, not logical reasoning, is what determines whether a right exists.

It’s not hard to see how this use of conservative constitutional logic for a substantively liberal outcome would play out in future cases. Is there a historical right to own an automatic weapon? To amass unlimited amounts of guns and ammo? To bring weapons into schools and sporting events? Of course not.

More generally, if history is to be our guide—as judicial conservatives usually insist—then surely it is appropriate to factor in the quantity of firepower involved, which could enable the government to regulate nearly all contemporary weapons.

Of course, one factor unchanged by these four considerations—Orlando, the Court, the assault weapons case, and Peruta—is the way in which gun rights has become a symbol, for white American conservatives, of the good ol’ days, limited government and exceptionalist American values. Indeed, the logic is often adolescent in nature; if it pisses off the liberals, it must be a good thing. That attitude, combined with the unprecedented gerrymandering of the House of Representatives, makes it unlikely that federal legislative action will come any time soon even though a majority of Americans support it.

But if Orlando has awakened the American public, in a way that Virginia Tech, Colombine, Sandy Hook, Roanoke, and San Bernadino did not, then these judicial changes might provide the avenue for that change to occur. They may not provide the will—but they do provide the way.

 

By: Jay Michaelson, The Daily Beast, June 22, 2016

June 23, 2016 Posted by | 2nd Amendment, Gun Control, National Rifle Association, U. S. Supreme Court | , , , , , , , | Leave a comment

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