“Undermining Democratic Turnout”: The Totally Legal Campaign To Steal 2016
The most striking facet of the Supreme Court’s decision to strike down Texas’ abortion law was how directly it confronted the obvious lie at the heart of the case.
Conservative lawmakers have enacted a sweeping flurry of abortion restrictions at the state level, and justified their policies with a supposed concern for women’s health. It’s such an obvious cover that when the court asked Texas’ lawyers to justify their arguments with empirical data, they had precisely bupkis. The point of these laws is to prevent abortion, women’s health be hanged.
An analogous situation is developing with respect to voting rights, where conservative legislators have also enacted a sweeping set of state-level regulations making it harder to vote and justified them with obvious nonsense about voter fraud. And it’s ready to pay off this year, especially in local elections.
The problem with voter ID laws — the signature conservative vote suppression measure — is that it’s aimed at the most idiotic possible method of stealing an election. Even a small local election is usually decided by hundreds if not thousands of votes, so in order to steal one with fraudulent individual votes, you’d have to get hundreds or thousands of people to commit a very serious felony — with no guarantee that it will actually swing the election.
As any tinpot dictator could tell you, the way to steal an election is by manipulating the central election procedure. Instead of wrangling thousands of random schlubs, you fiddle with the registration lists or the assignation of ballots — or you prevent the enemy party from voting in the first place.
Given the GOP’s other vote suppression measures — like shortening early voting, eliminating night and weekend voting, making it harder to register to vote, and so on, all of which have nothing to do with fraud but disproportionately hit liberal constituencies — undermining Democratic turnout is the obvious motivation behind voter ID and similar policies.
It’s always been unclear whether conservatives were being consciously deceptive about their motives, or had merely convinced themselves of tactically convenient nonsense by constant repetition. But at least some of them were outright lying. Ari Berman at The Nation has the goods, in an extensive report about how GOP vote suppression is paying dividends in Wisconsin:
Schultz asked his colleagues to consider not whether the bill would help the GOP, but how it would impact the voting rights of Wisconsinites. Then-State Senator Glenn Grothman cut him off: “What I’m concerned about is winning. We better get this done while we have the opportunity.” (When asked during the state’s April 5 primary why Republicans would carry Wisconsin in 2016, Grothman, who had since been elected to the U.S. Congress, replied: “Now we have photo ID.”) In a federal voting-rights case, Allbaugh named two other GOP senators who were “giddy” and “politically frothing at the mouth” over the bill. [The Nation]
Make no mistake, this is tantamount to election theft. But since the Supreme Court gutted the Voting Rights Act in 2013, it is all probably legal, and even fairly above board given the number of Republicans who have been caught letting slip the bleeding obvious.
But legal or illegal, there is little difference between falsifying the results of an election and preventing the enemy party’s supporters from voting. Either way American citizens are deprived of their due right to the franchise. And while there is no general constitutional right to vote, given that African-Americans are the most reliable Democratic Party supporters, many of the vote suppression measures are racist in effect and probably in intention, and therefore arguably violations of the 15th Amendment.
None of this is particularly original. Republicans are the direct heirs to the Dixiecrat political tradition, and this batch of vote suppression is a weak echo of the methods by which African-Americans were prevented from voting in the Jim Crow South.
But until Congress can re-protect the franchise, the key question for the future will be whether the Supreme Court will revisit its previous view that the Voting Rights Act is largely outdated and unnecessary. Chief Justice John Roberts came to that view through a tremendous effort of willful ignorance — but subsequent events could not possibly have proved him wrong more decisively. The next time voting rights comes before the court, the need to defend the franchise will be difficult to ignore.
By: Ryan Cooper, The Week, July 5, 2016
“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
“Juries And Racial Bias”: The Supreme Court Cracks Down On Racist Prosecutors
The Supreme Court tends to expend more energy detangling questions of law than it does sorting through questions of fact. But on May 23rd, in a decision that could spare the life of a death-row inmate in Georgia, the justices took a microscope to the jury selection process in the trial of Timothy Tyrone Foster, a black man sentenced to die by an all-white jury in 1987 for murdering an elderly woman a year earlier. After examining evidence that emerged in 2006, the justices decided, by a 7-1 vote, that prosecutors were illicitly motivated by racial bias when they struck two blacks from Mr Foster’s jury pool. Justice Clarence Thomas, the lone dissenter, wrote that there were “credible” non-racist reasons for dismissing them from the list of potential jurors; his colleagues’ dive into a three-decade-old trial, Justice Thomas charged, was “flabbergasting”.
In his majority opinion in Foster v Chatman, Chief Justice John Roberts methodically marched through rather damning evidence that the men prosecuting Mr Foster were hell-bent on keeping black people off the jury. The prosecutors’ notes during voir dire (jury selection) showed certain names highlighted in green, a colour that, the legend helpfully explains, “represents blacks”. The prospective black jurors were labelled “B#1”, “B#2” and “B#3” with capital letter “N” (meaning “no”) written next to each. All of the prospective jurors were asked to fill out a questionnaire including a question about their race; on the black individuals’ answer sheets, prosecutors drew attention to their race by circling the answer. And one of the lawyers scribbled out this sentiment: “If it comes down to having to pick one of the black jurors, [this one] might be okay”.
All of this, Mr Foster’s lawyer said at the November oral argument, adds up to “an arsenal of smoking guns” that race was at the forefront of the prosecutors’ minds. Such bias, the Supreme Court decided in Batson v Kentucky, a ruling that came down a year before Mr Foster’s trial, is impermissible during jury selection. When eliminating potential jurors via peremptory challenges (as opposed to challenges “for cause”), lawyers can be called upon to present a race-neutral explanation for their strikes. Mr Roberts wrote that the Georgia Supreme Court had “clearly erred” when it determined that racial considerations played no part in the selection of the jury. The host of reasons cited for nixing the black jurors—too young to care about a 79-year-old victim, too (apparently) bored, too shifty-eyed, too biased by relatives who were social workers—were not persuasive, as they applied just as readily to several non-black prospective jurors who were not challenged. These justifications, the court held, were mere pretext. Add to this “the shifting explanations, the misrepresentations of the record and the persistent focus on race in the prosecution’s file” and the justices are “left with the firm conviction that the strikes…were motivated in substantial part by discriminatory intent”.
Very late in the game, and in the face of all those smoking guns, Georgia tried to defend the apparently racist strikes with a brazenly duplicitous mind-game defence. The prosecutors were keenly aware that they would be held to a higher standard since Batson had been decided just a year earlier. They called such flamboyant attention to the race of the prospective jurors only so they could keep track of the black jurors in the event they were called upon to supply a race-neutral reason for their dismissal. This argument, Mr Roberts wrote, “falls flat” and “reeks of afterthought”, since it had not been made “in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the state’s brief in opposition to Foster’s petition for certiorari”. All the lights and whistles flagging the individuals’ race, he wrote, “plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”
That the sole African American member of the Supreme Court bench saw the case so differently is less surprising than it might seem. In recent rulings, Justice Thomas has found himself increasingly alienated from his seven colleagues. Three times in the past two weeks, he has cast a lonely dissenting vote from an otherwise unanimous decision. But the implications of his colleagues’ ruling in Foster v Chatman remain to be seen. Mr Foster can ask for a new sentencing trial, but he has no guarantee another jury will be more lenient. And it’s unclear how much of a constraint Foster will be moving forward. Prosecutors are on notice that incriminating notations during jury selection are a very bad idea. That may lead, on the margins, to less racial discrimination in the criminal justice system—but it will do little to curtail subtler methods of jury manipulation.
By: Steve Mazie, The Economist, May 23, 2016
“A Nicely Executed Double-Backflip”: If Bobby Jindal Can Support Trump, Any Republican Can
You’d sort of figure that of all the Republican pols who will eventually crawl their way back into the GOP tent after saying (publicly or privately) nasty things about Donald Trump, former Louisiana governor Bobby Jindal would have been last and least conspicuous — you know, maybe signaling an intention to vote for the mogul in a fine-print ad (like a legal notice) published the day before the general election.
But no: The rival who called Trump an “egomaniacal madman,” among other choice epithets, came out for the Donald in The Wall Street Journal about six weeks before the Republican National Convention, and close to a half-year before the general election.
To be sure, Jindal not only acknowledged but repeated some of his abuse.
I was one of the earliest and loudest critics of Mr. Trump. I mocked his appearance, demeanor, ideology and ego in the strongest language I have ever used to publicly criticize anyone in politics. I worked harder than most, with little apparent effect, to stop his ascendancy. I have not experienced a sudden epiphany and am not here to detail an evolution in my perspective.
No, it’s all about Barack Obama and Hillary Clinton, who are in Jindal’s eyes more loathsome and dangerous than a pol he’s described as psychopathic, unprincipled, and “unserious.” Clinton will, says the grotesquely unsuccessful Louisiana governor, continue Obama’s “radical” policies without the “triangulation” that made Bill Clinton tolerable to conservatives.
It’s significant that the first data point Jindal deploys is the impact of the general election on the Supreme Court:
In my lifetime, no Democrat in the White House has ever appointed a Supreme Court justice who surprised the nation by becoming more conservative, while the opposite certainly cannot be said for Republican appointments. Mr. Trump might not support a constitutionalist conservative focused on original intent and limits on the court’s powers. He may be more likely to appoint Judge Judy. However, there is only a chance that a President Trump would nominate a bad justice, while Mrs. Clinton certainly would.
This is a nicely executed double-backflip: Republican presidents are constantly putting godless liberals like John Roberts on the Court; could Trump be a much greater risk? And even Judge Judy would be better than the baby-killing, Christian-hating, tyrant-enablers Hillary Clinton would nominate.
What Jindal’s really doing here is something we are going to see from a lot of Republicans in the very near future: an engraved invitation to Trump to reassure them with some sort of iron-clad public commitment to appoint justices that not only would blow themselves up before allowing Roe v. Wade to stand or Citizens United to fall, but who might bring the whole hog of “constitutionalist conservatism” to the Court, turning back the clock to the 1930s. For people like Jindal, a right-wing Supreme Court would covereth a multitude of Trumpite sins.
You might wonder who on Earth really cares what Bobby Jindal thinks about the general election. But by making his “lesser of evils” argument so absolute, and making it so early, he’s helped create a lot of safe space for other Republicans who haven’t called Trump a madman to cross the boundary into the Trump camp at their convenience, preferably on a slow news day.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, May 9, 2016
“Chuck Grassley’s Supreme Court Coup”: To Protect The Court From Politics, Seat Nine Chuck Grassleys And Go Home
Sen. Chuck Grassley is in a tough spot. The Republican from Iowa, who chairs the Senate Judiciary Committee, has to decide whether or not to grant Judge Merrick Garland a hearing or to continue the unprecedented obstruction of President Obama’s Supreme Court nominee. When a guy dressed like Ben Franklin is trolling you through town halls in Iowa, you know you’re in trouble.
But Grassley’s bigger problem is that he has indicated in the past that he knows better than to take a torch to the Supreme Court for the sake of partisanship. Like most court-watchers, Grassley is well aware that the institution is often political, and that it always has been. But like most court-watchers, he is also aware that the continued viability of the institution rests on the jagged myth that the court can transcend politics and those moments when the court actually lives up to that ideal.
Grassley surely knows better than most that the court has only the public’s esteem to shore it up—and he knows better than anyone that the public trust demands at least some confidence the judicial project is about more than brute power and party loyalty.
Grassley knows all that, but as pressure on him has ramped up to hold hearings—and a vote—on a seat that remains empty, he’s apparently decided it doesn’t matter anymore. On Tuesday, Grassley gave a speech that went after the Supreme Court as a purely political institution, pantsing the entire high court, and Chief Justice John Roberts by name, on the floor of the United States Senate. In so doing, he not only damaged the Senate’s relationship with the court in a way he may not be able to repair, but also exposed his own hypocrisy as chairman of a judiciary committee tasked with ensuring that the court can function.
Grassley went after Roberts specifically for having the temerity to give a speech before Justice Antonin Scalia’s death, where he noted that “the [nomination] process is not functioning very well” and that well-qualified nominees—including current Justices Samuel Alito, Elena Kagan, and Sonia Sotomayor—should have been confirmed along bipartisan lines.
No way, said Grassley. If politics have overtaken the nomination process, it’s the court’s fault. “What’s troubling is that a large segment of the population views the justices as political,” Grassley said. And whose fault is that? “The justices themselves have gotten political,” he declared. “And because the justices’ decisions are often political and transgress their constitutional role the process becomes more political.” In fact, Grassley added, (apolitically) his own constituents believe that Roberts “is part of this problem.”
“They believe that the number of his votes have reflected political considerations, not legal ones,” Grassley continued, adding with a flourish “so, physician, heal thyself.” To add a little mob flair, he then warned the chief not to insert himself into Garland’s nomination fight.
To be fair to Grassley here, we should consider: Isn’t he just telling the truth about politics influencing court opinions?
The problem with this defense is that the judiciary chair’s double-helix of hypocrisy gives him no standing to call out Roberts or any member of the court. Grassley has—at various times in his career—argued that the court is different from the other two patently political branches. For instance: In January 2006, with Alito having just been appointed to the high court, Grassley argued that the politics had nothing to do with the nomination process, nor the court. “The Senate’s tradition has been to confirm individuals who are well qualified to interpret and to apply the law and who understand the proper role of the judiciary to dispense justice,” he said. This coming from the man who is now arguing that politics is the reason we can’t have a hearing.
But the extra special hypocrisy sauce here is that Grassley now says that the only way to depoliticize the court would be to appoint nominees who conform their political views to those of the Republican Party. “Justices appointed by Republicans are generally committed to following the law,” he said. And then he argued that the court is too political because Republican nominees don’t act sufficiently politically. “There are justices who frequently vote in a conservative way,” he said. “But some of the justices appointed even by Republicans often don’t vote in a way that advances conservative policy.”
Wait, what? So the problem for Grassley isn’t “political” justices—it’s justices appointed by Republicans who don’t advance “conservative policy” 100 percent of the time. And with that, he revealed his real issue. His Senate floor attack isn’t about depoliticizing the court at all. It’s about calling out Roberts for being insufficiently loyal to the Tea Party agenda when he voted not to strike down Obamacare.
What is really being said here is that there is only one way to interpret the Constitution and that is in the way that “advances conservative policy.” According to Grassley’s thinking, a justice who fails to do that in every single case before him or her is “political” and damaging the court. By this insane logic, the only way to protect the court from politics is to seat nine Chuck Grassleys and go home. And to achieve this type of court he will stop at nothing, including trash talking the entire institution from the Senate floor and threatening the chief justice who will, because he is chief justice, decline to respond.
Again, remember back at the time of the fight over Alito when the same Sen. Grassley warned, “the Supreme Court does not have seats reserved for one philosophy or another. That kind of reasoning is completely antithetical to the proper role of the judiciary in our system of government.” What that seems to have meant in retrospect: There is only a single judicial philosophy and if I don’t get a nominee who shares that philosophy, I’ll happily slander the whole court.
Grassley’s aides like to claim that he believes in his heart that this unexpected election-year vacancy offers the country a rare opportunity for a national debate about the role of the Supreme Court. We have a forum for just such a debate. It’s called a confirmation hearing. But Grassley doesn’t want a debate. He wants a coup.
Speaking Thursday afternoon at the University of Chicago Law School on the court’s role, President Obama warned against exactly this form of dangerous and destructive politics. When people “just view the courts as an extension of our political parties—polarized political parties” he warned, public confidence in the justice system is eroded. “If confidence in the courts consistently breaks down, then you see our attitudes about democracy generally start to break down, and legitimacy breaking down in ways that are very dangerous.”
Sen. Grassley has made the choice to hold no hearings and have no vote for an eminently qualified jurist because—as he has now openly stated—there are only two legitimate justices on the Supreme Court, the two who agree with his viewpoint 100 percent of the time. Grassley, and the rest of his Republican colleagues who continue to refuse hearings and a vote on Merrick Garland, have seamlessly and shamelessly turned the entire judicial branch into their own, private constitutional snowglobe.
By: Dahlia Lithwick, Slate , April 7, 2016
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