Bill Blum

It’s time to revive Franklin Roosevelt’s court-expansion plan in defense of democracy and the rule of law

This is the concluding feature story in the multi-part Dig series, “The Supreme Court’s War on the Future,” investigating how the Supreme Court was remade in the image of Robert Bork.

The radical right’s long crusade to capture the Supreme Court is over. Anyone who doesn’t realize this hasn’t been paying attention, or has imbibed the Kool-Aid served by Chief Justice John Roberts at his 2005 Senate confirmation hearing, when he promised to work as a neutral arbiter on the bench much like a baseball umpire, calling only “balls and strike, and not to pitch or bat.”

This article originally appeared on Truthdig.

Instead of minding the strike zone, Roberts and his Republican confederates old and new have changed the rules of the game in a concerted effort to drive the country backward. Under the aegis of the regressive legal theory of “originalism” (see Part I of this series), they have issued a blistering succession of reactionary rulings on votingrights, gerrymandering, unionorganizing, the death penalty, environmental protection, guncontrol, abortion, campaign finance, and the use of dark money in politics. Before the court’s current term concludes at the end of June, it likely will wreak more havoc in a series of pending cases on “religious liberty” and LGBTQ discrimination, affirmative action, student-debt forgiveness, and, once again, votingrights.

The court is at war with democracy and modernity. It must be stopped.

The good news is that from a legal standpoint, there is much that can be done to bring the court back into balance and restore its independence from the Republican Party and its dark money donors. We know what steps must be taken to fix the court. We need, among other measures, a code of ethics to root out corruption and conflicts of interests, as the Supreme Court is the only judicial body in the country whose members are not bound by one. We need term limits for the justices, and congressional overrides of far-right decisions to the maximum extent possible. Above all, we need to expand the number of seats on the court and fill them with contemporary-minded jurists who repudiate originalism in favor of “living constitutionalism,” the rival jurisprudential model that sees the Constitution as an evolving document.

Accomplishing any meaningful changes in the court’s composition and orientation, however, won’t come quickly or easily. Meaningful changes will require the support of a broad-based political movement that links the issue of court reform to legislative and grass-roots campaigns for social justice. This will be a long struggle waged across a variety of fronts — in courtrooms; over the airwaves, print media and the Internet; in the halls of Congress; in public meetings, teach-ins and demonstrations; and most decisively, at the ballot box.

* * *

Every successful political movement involves undermining the propaganda of the opposition. With that principle in mind, the first step we can take in building a movement to reclaim the Supreme Court is something every one of us can do as individuals: We can reject the myth that the court is apolitical. The sobering truth is just the opposite. Presidents nominate justices to advance political agendas. And once confirmed and vested with lifetime appointments, justices exercise extraordinary power, issuing rulings that affect all aspects of our lives, often acting as de facto super-legislators.

We can also abandon our reverence for the court’s presumed wisdom and scholarship. We may be legally bound by the court’s decisions, but there is no reason to regard the justices as infallible demigods deliberating on high. We can and should expose them as we would any other public servants or politicians, one by one and collectively, for producing poorly reasoned and result-oriented opinions, and betraying the public trust.

Washington Post columnist Perry Bacon Jr. has proposed a campaign of organized shaming as a short-term approach to reining in the court. “Democratic politicians, left-leaning activist groups, newspaper editorial boards and other influential people and institutions need to start relentlessly blasting Republican-appointed judges,” especially those on the Supreme Court, Bacon argued in a recent article.

Among other concrete actions, Bacon advises weekly news conferences convened by high-profile Democrats, including on occasion the president, to slam the court’s most extreme rulings. He also calls on the Senate Judiciary Committee to convene hearings “in the mold of the Jan. 6 commission, with compelling witnesses and videos. Republican-appointed judges have been just as damaging to American democracy as Trump has been (if not more so), just in a less obvious way. That needs to be explained to the American public…[in] plain-spoken” language. He also suggests that in those conferences and editorials, the justices be identified according to their partisan affiliations.

To a certain extent, the shaming and public criticism Bacon advocates is already underway. As a result of the court’s extreme shift to the right and the antipathy the shift has engendered, the court’s approval ratings have plummeted, triggering a crisis of legitimacy unseen since the early 1930s.

If done artfully, shaming can be a catalyst for change. But long-term, we need broader remedies and specifically, court expansion. To get a sense of the possibilities, we need to turn to history.

Contrary to much conventional thinking, our court system is not fixed in stone, but has evolved over time. We are not the first generation to confront the issues of judicial power and abuse.

Americans have been debating — and at times openly fighting over — the proper nature of judicial power since colonial times. Legal disputes over taxation, the issuance of general search warrants known as writs of assistance and expansions in the jurisdiction of the King’s dreaded Vice Admiralty Courts were key factors in sparking the American Revolution.

Three of the 27 grievances listed in the Declaration of Independence concerned the administration of justice. The signers of the declaration complained that George III, the British monarch, had deprived them of the right to establish their own courts, that he had made judges dependent on him for their salaries and tenures and that he had deprived them of the right to trial by jury.

The Articles of Confederation, our first national charter, marked the end of British rule, but did not create a national court system. That task was left to the Constitutional Convention of 1787, which established a tri-partite federal government with a separate judicial branch.

The Supreme Court is the only court specifically mentioned in the Constitution. Article III, Section 1 of the Constitution provides: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The same section specifies lifetime tenure for all federal judges.

Nowhere does the Constitution say how many justices should sit on the Supreme Court. That decision is left up to Congress and the president through legislation passed and signed into law.

The Constitution is also silent on whether the Supreme Court should be endowed with the power of “judicial review” — the tool that authorizes it to invalidate or uphold acts of Congress, the president and the states at its sole discretion.

In the ratification debates that followed the Convention, the proponents and opponents of the new constitution put the concept of judicial review front and center in a clash of essays published by newspapers in New York and elsewhere that have since been collected and come to be known as the Federalist Papers and the Anti-Federalist Papers.

Writing under the pseudonym “Publius,” Alexander Hamilton, the nation’s first treasury secretary, outlined the principles of judicial review in Federalist No. 78, arguing:

“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”

Hamilton was aware of the potential for overreach, but he believed the federal judiciary would in practice be “the least dangerous” branch of government. Unlike Congress and the executive, he reasoned, the courts would have “no influence over either the sword or purse,” but would possess “only judgment,” rendering them dependent on the other branches to obey and carry out their decisions.

Not all the founders agreed. Almost forgotten in the ensuing hagiography of Hamilton are a set of anti-federalist warnings believed by historians to have been penned by New York state judge Robert Yates under the pseudonym “Brutus” that seem eerily to have presaged the rise of today’s imperial Supreme Court.

In essay No. 14, Brutus wrote that under the Constitution, the Supreme Court “would be exalted above all other power in the government, and subject to no control.” In No. 15, he added:

“[T]he supreme court . . . [will] have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away…. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

Hamilton’s position triumphed and became official doctrine with the Supreme Court’s landmark 1803 decision in Marbury v. Madison. As of August 2017, according to the Congressional Research Service, the court had used the power of judicial review to invalidate 182 acts of Congress and 1,094 state statutes and local ordinances as unconstitutional. In addition, it had also overruled, in whole or in part, 236 of its prior decisions. The numbers in all categories have grown since then.

Throughout the decades, the court has exercised its power of judicial review for both good and evil purposes. In Dred Scott v. Sanford (1857), it illustrated the darkest side of judicial review, invalidating the Missouri Compromise and declaring that Black Americans could never be citizens. It returned to the dark side in the early 1930s when it struck down key pieces of the New Deal. Last year’s Dobbs decision on abortion is another appalling example. By contrast, the court moved the country forward in Brown v. Board of Education (1954), overturning the regime of “separate but equal” that it had previously upheld in Plessy v. Ferguson (1896). Brown ushered in a brief period of enlightened judicial review under the guidance of Chief Justice Earl Warren (1954-1969).

As its power increased, the court occasionally encountered strong political pushback. Abraham Lincoln, for example, defied the court both in his decision to suspend habeas corpus during the Civil War, and with the issuance of the Emancipation Proclamation (1863) in direct contravention of Dred Scott. Other notable confrontations involved the conflicts in the 1930s between a reactionary court and a Democratic Congress and president, and those sparked by southern racists against the Warren Court and the civil rights movement.

Political pushback has also come in the form of proposals to change the number of seats on the court. Between 1789 and 1869, the size of the court was altered seven times to “pack” or “unpack” the panel for partisan purposes. Originally designed as a tribunal of six, the number of seats has varied from a low of five in 1801 in the middle of a battle for control of the judiciary between the waning Federalist Party and the rising Democratic-Republicans to a high of 10 in 1863, when Lincoln expanded the court to counter the influence of Chief Justice Roger Taney, author of the Dred Scott disaster. The number has remained at nine since 1869.

* * *

Interest in court reform and expansion reemerged after Senate Republicans refused to hold a confirmation hearing for Merrick Garland, President Obama’s choice to replace Antonin Scalia, who died suddenly on Feb. 13, 2016. The interest picked up additional steam during the 2020 presidential campaign after President Trump succeeded in packing the court with young dogmatic originalists.

Although President Biden has never been a supporter of court expansion, he bowed to pressure from his left, and appointed a bipartisan blue ribbon commission of prominent academics and commentators to study the need for reform in April 2021. After seven months of meetings and deliberations, the commission produced a 294-page report but without making a single concrete recommendation.

On the plus side, the report contains a useful summary of the court’s history, including a discussion of the last significant attempt at expansion undertaken by President Franklin Delano Roosevelt. FDR’s experience offers several important lessons for contemporary reformers.

Roosevelt sent his court plan to Congress on Feb. 5, 1937. Formally known as the Judicial Procedures Reform Bill of 1937, the measure would have allowed the president to appoint up to six new justices, one for every member of the high court older than 70 years, six months, who had already served 10 years or more and declined to retire.

Facing stiff resistance in the Senate, despite his overwhelming victory at the polls a year earlier, FDR turned to the public on March 9, 1937, in the ninth of his famous radio “fireside chats.” Throughout his four terms in office, FDR used such addresses to speak directly to the American people, to quell their economic and social anxieties, explain his policies and rebut conservative critics as he attempted to steer the nation through the Great Depression and, later, the Second World War.

The ninth chat began over the static-filled airwaves much as did those that preceded it, with references to the unrelenting hardships that, in FDR’s words, had left “one-third of a Nation ill-nourished, ill-clad, and ill-housed.” The president then turned to the need to reorganize the federal judiciary, and especially the Supreme Court.

Roosevelt and the militant industrial union movement that formed the heart of his New Deal base were outraged by a series of ultra-right-wing rulings from the high court that had struck down key pieces of New Deal legislation, including the National Industrial Recovery Act, the Agricultural Adjustment Act and a New York state minimum wage law. In the coming weeks, the court was slated to issue decisions on the constitutionality of the National Labor Relations Act and the Social Security Act. The president and his allies feared the worst from the “Nine Old Men,” as the septuagenarian justices who sat on the court were often called. They believed that unless the court changed course, it could and very likely would destroy the economy and along with it, democracy itself.

In language that today’s court reformers and “living constitutionalists” might recognize as their own, FDR told his audience:

“When I commenced to review the situation [with the Supreme Court] with the problem squarely before me, I came by a process of elimination to the conclusion that, short of amendments, the only method which was clearly constitutional, and would at the same time carry out other much needed reforms, was to infuse new blood into all our Courts. We must have men worthy and equipped to carry out impartial justice. But, at the same time, we must have Judges who will bring to the Courts a present-day sense of the Constitution — Judges who will retain in the Courts the judicial functions of a court, and reject the legislative powers which the courts have today assumed…
“Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present. This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our Constitutional Government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’”

The bill never was enacted. After months of heated debate, the Senate voted to send it back to committee, and the House never brought it to the floor. Ever since, the “court-packing plan,” as the scheme has been dubbed in mainstream historical narratives, has been seen as “the most humiliating defeat” of FDR’s career.

Except that it wasn’t a failure at all. On March 29, 1937, the Supreme Court did a complete about-face, upholding a Washington state minimum-wage statute similar to the New York law it had overturned the year before. In April, the court upheld the National Labor Relations Act, and in May, it validated the Social Security Act.

Over the next six years, eight of the Nine Old Men retired, allowing FDR to replace them, and to elevate one of the court’s liberals — Harlan F. Stone — to the post of Chief Justice. The court never again invalidated a New Deal program. FDR would later claim, “We obtained 98% of all the objectives intended by the court plan.”

Historians have debated the cause of the court’s turnaround, but pressure from the administration and the threat of intensifying labor unrest undoubtedly played a critical role. Indeed, on the morning of March 9, 1937, just hours before FDR’s chat, The New York Times ran twofront-page stories about a new wave of “sit-down strikes” spearheaded by the United Auto Workers of America in Detroit and Flint, Michigan. The strikes, the paper reported, were “the most drastic…that the automobile industry has experienced,” halting production at factories owned by Chrysler, Chevrolet, Packard and the Hudson Motor Car Company. The workers eventually won, and the UAW was recognized as their bargaining agent.

We are faced today with echoes of the past — a Supreme Court that has moved sharply and unpopularly to the extreme right; an economy that is backsliding into ever-worsening oligarchy and is on the verge of a new recession; a world that is teetering on the brink of another global war.

If anything, the need to expand the court is more urgent than ever. We don’t have Nine Old Men on today’s Supreme Court. Clarence Thomas will be 75 in June and Samuel Alito will turn 73 in April, but Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett are in their fifties, youngsters in judicial terms. They can be expected to serve for decades.

We also do not have a labor movement that can pressure the court. Only 10.1% of the American workforce is unionized, and, with some exceptions, it isn’t particularly militant.

We do, however, have the makings of a progressive coalition with far-reaching potential. Some of that potential was unleashed in the midterm elections, galvanized by the Dobbs decision. We need to merge that energy with movements organized around police violence, debt relief, voting rights, economic inequality and other causes that are stymied by the current Supreme Court.

Success, even in the long run, is by no means guaranteed. Basic court reform will require strong and aggressive Democratic majorities in Congress, and a Senate caucus prepared to abandon or carve out exceptions to the filibuster. In any event, we have no alternative but to push ahead. Either we accept a reactionary court for the foreseeable future, or we try to change it.

As University of Pennsylvania law professor Kermit Roosevelt III, FDR’s great-great grandson, put it in a December 2021 article for Time magazine, “We are witnessing a minority takeover of our democracy,” with the Supreme Court standing in the way.

Professor Roosevelt was a member of the Biden Supreme Court Commission. He began his stint there as a skeptic of court expansion, but the experience changed his thinking. He is now a staunch advocate. We can’t be intimidated or deterred “by wishful bromides about neutral judges and myopic defense of the status quo,” his article concludes. “Court expansion may be the only thing that will save our democracy for the next generation.”

Truer words could not have been written by FDR himself.

The United States' hypocrisy toward the International Criminal Court

On March 17, the International Criminal Court (ICC) issued arrest warrants for Russian President Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, the commissioner for children's rights in the Office of the President of the Russian Federation. The warrant charges Putin and Lvova-Belova with war crimesas defined under international law for the unlawful deportation of Ukrainian children from occupied areas to Russia. According to the Ukrainian government, over 16,000 children have been forcibly transferred to Russia since the war began in February 2022.

The ICC's action comes on the heels of other steps taken by international bodies to condemn Russia's invasion of Ukraine. The United Nations General Assembly has passed two resolutions, the first in October 2022 and the second last month, calling on Russia to end hostilities and withdraw its forces. In March 2022, The International Court of Justice (ICJ, also known as the "World Court") issued a "provisional measure" (the equivalent of a preliminary injunction) ordering Russia to halt the invasion.

Seen in this context, the ICC's action marks a historic milestone not only for the ICC as an institution, but for international law more generally.

The contemporary framework of international law took shape after the Second World War with the ratification of the Geneva Conventions of 1949 and the subsequent amendments, or "protocols," to the conventions. The post-war period also saw the founding of the United Nations and the World Court as a forum for resolving disputes among nations. The ICC began operations in 2002 as a forum for trying individuals accused of committing war crimes, genocide and other "crimes against humanity."

Unfortunately, international law is only effective if the great powers of the globe agree to abide by its strictures. Russia has rejected the ICC's jurisdiction over its military operations in Ukraine, and will never surrender its president or any other officials to the court's jurisdiction. In 2016, Russia withdrew from the international treaty that established the court.

The United States, while eagerly condemning Russian war crimes, is arguably even more hypocritical when it comes to the ICC. The U.S. initially signed the court's treaty in 2000 but withdrew from it in 2002 over fears that the court would one day charge U.S. soldiers or other personnel with international crimes.

The ICC has been criticized in the past for targeting African human rights violators and overlooking European and U.S. malefactors. But in a historic turnabout, the court opened investigations in 2020 into alleged war crimes committed by the U.S. in Afghanistan and by Israel in Palestine.

The Biden administration lifted Trump-era sanctions against the ICC, but continues to oppose both of the probes into U.S. actions. The administration also has no intention of allowing the U.S. to join the court, as 123 other nations have.

The work of the ICC, the U.N. and the World Court deserve the support of the peace movement in this country and abroad. There is a simple rejoinder to both the leaders of Russia and the U.S. when it comes to facing accountability under international law: If you don't want to be accused of war crimes, don't commit them in the first place.

The consequences of reactionaries conducting judicial review

In and of itself, the power of judicial review is neither good nor bad. Like any other power, it can be wielded to advance or thwart democratic values and the ideals of equal justice. Over the decades, the court has done just that, handing down both deplorable and venerable rulings, some extremely right-wing and some liberal and progressive.

In the most despicable decision in its entire history, Dred Scott v. Sandford (1857), the court held that African Americans, no matter where they resided or whether they were then free or enslaved, could not be American citizens. The decision specifically invalidated the Missouri Compromise of 1820, which had prohibited slavery in the Louisiana territory north of the 36°30′ latitude line.

In the words of Chief Justice Roger Taney, who wrote the majority opinion and was himself a former slave owner, Black Americans "had no rights that the white man was bound to respect." The Dred Scott decision plunged the country into a constitutional crisis and helped trigger the Civil War.

With the end of Reconstruction, the Supreme Court again moved sharply to the right in the Civil Rights Cases of 1883, a set of five consolidated decisions that struck down portions of the Civil Rights Act of 1875. The 1875 act prohibited racial discrimination in transportation facilities, hotels, theatres and other places of "public amusement." By a vote of 8-1, the court held that the federal government had no power to outlaw discrimination in the private sector. (Discrimination in employment and places of public accommodation would not be outlawed until passage of the Civil Rights Acts of 1964 and 1968.)

Over the decades, the court has done just that, handing down both deplorable and venerable rulings, some extremely right-wing and some liberal and progressive.

The court struck another crippling blow against racial equality in Plessy v. Ferguson (1896), upholding the constitutionality of a Louisiana law that required separate railroad cars for white and black people. The ruling constitutionalized the doctrine of "separate but equal," and legitimized segregation and white-supremacy institutions and practices that would persist in the South into the 1950s in what historians call the "Jim Crow" era.

During the late 19th century and into the 20th, the court exercised the power of judicial review to come to the aid of big business, trusts and monopolies, ruling that the federal government had the authority to break up labor strikes, declaring laws setting limits on maximum working hours unconstitutional, and invalidating child-labor and minimum-wage laws.

Continuing its bias in favor of corporations over labor, the court invalidated several key legislative pieces of the early New Deal, stymying the Roosevelt administration's efforts to fight the Great Depression. It was not until President Franklin Delano Roosevelt announced a plan to expand the court to include as many as 15 justices that the high tribunal turned around. Although legislation to implement the plan never passed, the court subsequently upheld the National Labor Relations and Social Security Acts and other progressive pillars of FDR's economic recovery package.

Finally, a great sea change in the use of judicial review took place during the tenure of Chief Justice Earl Warren, who led the court from 1953 until his retirement in 1969. In one of the most enlightened and progressive decisions in its history, Brown v. Board of Education (1954), the court unanimously held that state laws establishing racial segregation in public schools are unconstitutional. The decision put a formal end to the post-Civil War segregation doctrine of "separate but equal" and explicitly overturned Plessy v. Ferguson.

Under Warren's stewardship, the court issued a host of other landmark liberal decisions, upholding the Voting Rights Act, establishing First Amendment protections for newspapers, reporters and publishers against defamation lawsuits brought by public officials and public figures, establishing the reapportionment principle of "one person one vote," invalidating state laws that banned interracial marriage, guaranteeing the right to counsel in criminal cases, and much more.

Unfortunately, in recent decades, the court has shifted steadily back to the right. The move to the right has been especially acute since the appointment of Chief Justice John Roberts in 2005.

With Roberts at the helm, the court has, among other things, reinterpreted the Second Amendment to include an individual right to bear arms, undermined the legal foundations of unionorganizing, removed political gerrymandering from the jurisdiction of federal courts, and opened election campaigns to unlimited spending by corporations, unions and wealthy individual donors.

The Roberts court has been particularly aggressive in rolling back voting rights. In 2013, in a 5-4 majority opinion penned by Roberts himself in the case of Shelby County v. Holder, the court gutted the "preclearance provisions" of the Voting Rights Act. Those provisions, now moribund, required advance federal approval of changes in election procedures in jurisdictions with a history of racial discrimination.

The Roberts court has been particularly aggressive in rolling back voting rights.

Shelby County was a stark reminder of the dark side of judicial review, coming only seven years after Congress had reauthorized the Voting Rights Act by a 98-0 vote in the Senate and a 390-33 margin in the House of Representatives.

To be fair, the record of the Roberts Court has included some liberal rulings, especially in the field of gay rights and same-sex marriage.

However, with conservatives now holding a solid 6-3 majority on the court and utilizing the awesome power of judicial review, the future looks decidedly bleak. Indeed, in its October 2021 term, the court returned to its reactionary roots, overturning Roe v. Wade and Planned Parenthood v. Casey and revoking the federal constitutional right to abortion with its decision in Dobbs v. Jackson Women's Health Organization. The court also created grave new obstacles to gun control with its opinion in New York Rifle & Pistol Ass'n. v. Bruen. The October 2022 term promises to deliver more of the same.

Unequal justice: Did five Supreme Court justices lie about abortion?

The Supreme Court's landmark decision in Dobbs v. Jackson Women’s Health Organization, issued last year, overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), and dismantled the federal constitutional right to abortion. One of the lingering questions in the aftermath of Dobbs is whether any of the five justices who voted to take that drastic step lied about their views on abortion during their respective confirmation hearings before the Senate Judiciary Committee.

A strong argument can be made that each of them either lied or made materially misleading statements.

Samuel Alito

Alito authored the 5-4 majority opinion in Dobbs, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

He delivered the court’s holding in stark and aggressive terms: "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."

As any seasoned lawyer can attest, the phrase "egregiously wrong" when used by a justice in the normally dignified context of appellate litigation is the equivalent of a verbal smackdown. It's meant as an insult and a sign of contempt.

But contrast Alito's inflammatory language in Dobbs with his Senate confirmation hearing testimony in 2006.

In response to a series of questions about Roe and Casey posed by the late Arlen Specter, then a Republican Senator from Pennsylvania, Alito said:

"Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system, and it's the principle that courts in general should follow their past precedents, and it’s important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interest, and it's important because it reflect[s] the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions….

Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time. It has been challenged on a number of occasions…and the Supreme Court has reaffirmed the decision, sometimes on the merits, sometimes in Casey based on stare decisis, and I think that when a decision is challenged and it is reaffirmed that strengthens its value as stare decisis…."

Alito was confirmed by the Senate on January 31, 2006 by a vote of 58-42. His confirmation testimony about abortion can be viewed here.

Clarence Thomas

Thomas not only joined Alito's majority opinion in Dobbs, but he also issued a separate concurrence in which he called upon his colleagues to revisit and overturn such privacy-based precedents as Griswold v. Connecticut (1965) on the right to contraception; Lawrence v. Texas (2003) on the right to engage in same-sex intimacy; and Obergefell v. Hodges, (2015) on the right to same-sex marriage.

Here's what Thomas had to say on these subjects at his 1991 confirmation hearing when questioned by Senator Patrick Leahy, Democrat of Vermont:

"Senator, I think that the Supreme Court has made clear that the issue of marital privacy is protected, that the State cannot infringe on that without a compelling interest, and the Supreme Court, of course, in the case of Roe v. Wade has found an interest in the woman's right to—as a fundamental interest a woman's right to terminate a pregnancy….

Senator, your question to me was did I debate [in law school or elsewhere] the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not."

Thomas was confirmed on October 15, 1991 by a vote of 52-48. A portion of his confirmation hearing can be viewed here.

Neil Gorsuch

Replying to questions about Roe raised by Senator Charles Grassley, Republican of Iowa, Gorsuch testified in his 2017 confirmation hearing:

"I would tell you that Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. The reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered. It is a precedent of the U.S. Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases. So, a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other."

Later in the hearing, questioned by Senator Diane Feinstein, Democrat of California, Gorsuch added:

"Part of the value of precedent [is] it has lots of value. It has value, in and of itself, because it is our history, and our history has value intrinsically. But it also has an instrumental value in this sense. It adds to the determinacy of law…. It is part of the reason why the rule of law in this country works so well."

Gorsuch was confirmed on April 7, 2017, by a vote of 54-45. His confirmation testimony can be seen here.

Brett Kavanaugh

Kavanaugh wrote a concurring opinion in Dobbs, arguing, in contrast to Thomas, that overruling Roe would not threaten or "cast doubt" on the court's precedent decisions on contraception and marriage. He also claimed that Dobbs would not prevent states that recognize abortion rights from continuing to do so in the future.

Nonetheless, he concluded that when it comes to abortion, the "Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views."

He also, incredulously, compared Dobbs to Brown v. Board of Education (1954), the landmark decision that overturned Plessy v. Ferguson (1896), which upheld state-imposed racial segregation. In fact, Dobbs is more akin to Plessy, permitting states to gut abortion rights and establish a new regime of discrimination that denies pregnant people their right to reproductive freedom.

Kavanaugh took an entirely different tack on Roe and Casey in his confirmation hearing, remarking in a colloquy with Senator Feinstein:

"I will tell you what my view right now is. Which is, it [Roe] is an important precedent of the Supreme Court that has been reaffirmed many times. But then Planned—and this is the point that I want to make that I think is important. Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decisis factors. So Casey now becomes a precedent on precedent. It is not as if it is just a run-of-the-mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent."

Kavanaugh was confirmed on October 6, 2018 by a vote of 50-48. His exchange with Feinstein can be viewed here.

Amy Coney Barrett

Like the other justices who voted to overrule Roe and Casey, Barrett did her best to dodge inquiries about the constitutionality of abortion. However, in a telling back-and-forth with Feinstein about whether she would uphold abortion rights if confirmed, she declared:

"Senator, I completely understand why you are asking the question, but again, I can't pre-commit or say yes, I'm going in with some agenda, because I'm not. I don't have any agenda."

Barrett was confirmed on October 26, 2020, by a vote of 52-48. Her exchange with Feinstein can be viewed here.

Whether the five justices who scuttled Roe and Casey committed perjury or simply deployed their ample skills to avoid full disclosure, their auditions for lifetime appointments on the highest court in the land were an affront to the rule of law and the Constitution they are sworn to uphold. And that is something we should never let them forget.

The Supreme Court is reactionary. Is it also corrupt?

Under the guise of the regressive legal theory of “originalism,” the United States Supreme Court Republican-appointed majority has issued a series of ultra-right rulings on such vital issues as votingrights, gerrymandering, unionorganizing, the death penalty, environmental protection, guncontrol, abortion, and campaign finance. The end goal appears to be nothing less than the dismantling of the last vestiges of the New Deal and the Civil Rights movement.

But in addition to being reactionary, is the court also guilty of corruption? The answer depends on how we define and think of corruption.

In the strictest legal sense, the justices appear to be in the clear. Under federal law, “public corruption” is defined as “a breach of the public’s trust by government officials who use their public office to obtain personal gain,” asking for or receiving anything of value in exchange for an official act. In a 2016 decision reversing the bribery conviction of former Virginia GOP Governor Bob McDonnell, the Supreme Court narrowed the legal definition of public corruption to require strict proof of a “quid pro quo”—a swap of money or another benefit in return for a specific governmental favor.

But from a larger moral and political perspective, the court’s Republican majority is far from innocent. We expect all federal judges—and particularly those at the top of the judicial pyramid—not only to be law-abiding but to be free of political bias and conflicts of interest. We expect them to honor the enormous faith we have placed in them to use their lifetime appointments to be forthright stewards of justice and democracy.

That faith has been breached time and again.

Ethical Cannon 2A of The Code of Conduct for United States Judges requires those who don the robe to “respect and comply with the law,” and “to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Cannon 2B further advises that a “judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.”

There also is federal statute, found at Title 28, section 455 of the United States Code, that requires judges to disqualify themselves when they have a personal bias or prejudice toward a party, or when the judge or their spouse has a financial interest in a proceeding, or they or their spouses have “any other interest that could be substantially affected by the outcome” of a proceeding before them.

The problem is that the Code of Conduct does not apply to the Supreme Court. And there is no mechanism for enforcing the disqualification criteria against a sitting justice. The Supreme Court stands alone as the only tribunal in the nation without any ethical accountability beyond impeachment, which for all practical purposes is an ineffective remedy. (Only one Justice in our entire history has been impeached—Samuel Chase in 1804—and he was acquitted by the Senate.)

The most obvious offender is Clarence Thomas, who has gotten away with flagrant misconduct as a result of this lack of accountability. Under the 1978 Ethics in Government Act, all high-ranking federal officials are required to file yearly financial disclosure statements for themselves and their spouses to safeguard against conflicts of interest. But for many years, Thomas failed to report his wife Ginni's earnings on the mandatory annual financial disclosure forms that he signed under penalty of perjury, indicating that his spouse had no non-investment income. In fact, she was steadily employed in high-level jobs as a policy analyst and an outspoken conservative activist.

According to Common Cause, Ginni—who is also a lawyer—received more than $686,000 between 2003 and 2007 working for the Heritage Foundation. In 2011, claiming incredulously that he had misunderstood his reporting responsibilities, Thomas amended his financial disclosures, which can now be examined on the website.

Thomas again generated headlines when he refused to recuse himself in cases involving the January 6 insurrection and Trump’s efforts to overturn the results of the 2020 election, despite Ginni’s prominent role as an organizer of the “stop the steal” campaign.

Thomas is not the only justice with a spouse whose work has raised conflict-of-interest questions. According to The New York Times, Chief Justice Roberts’ wife Jane has made millions in her career as a recruiter for high-profile law firms, some of which litigate cases before the Supreme Court. The Chief Justice, however, has never recused himself from a matter involving his wife’s recruits and has never disclosed her client list on his annual financial reports.

Additional potential conflicts of interest have surfaced around donations made to the Supreme Court Historical Society, a non-profit charity founded in 1974 to promote and celebrate the court’s legacy. Over the past two decades, the society reportedly raised more than $23 million from corporations, law firms, and other groups. The donors, in turn, receive special access to the Justices, who regularly attend the society’s annual black-tie dinner as well as lectures and other functions the society sponsors.

Among those who have attended society events and helped raise donations on its behalf is the Reverend Rob Schenck, an Evangelical minister and anti-abortion crusader. In a June 2022 letter to Chief Justice Roberts and in later interviews with The New York Times, Schenck claimed he was told in advance of the court’s 2014 decision in Burwell v. Hobby Lobby, which held that the owners of for-profit corporations may lawfully refuse to fund health insurance coverage for employees for contraception on religious grounds. The source of the leak, Schenck alleged, was Justice Samuel Alito, the author of the Hobby Lobby majority opinion.

Alito also has been at the center of the scandalous leak last May of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization, which Alito wrote, overruling Roe v. Wade.

Unequal justice: The January 6th Select Committee's 'Crime and Punishment' moment

The most surprising thing about the final report of the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol isn’t the mountain of evidence of Donald Trump’s criminality that it contains nor the criminal referrals it makes to the Justice Department, but its readability. According to The New York Times, at least a half dozen publishing houses are releasing their own editions of the 845-page tome. On a December 22 broadcast, MSNBC host Lawrence O’Donnell nailed it when he remarked, “This is the way a great novelist would lay out this story.”

But it isn’t just any novel the report calls to mind. The closest approximation is Fyodor Dostoevsky’s classic psychological drama, Crime and Punishment.

Both the great novel and the report are constructed around a tortured central character who thinks he is above the law. Dostoevsky’s dark protagonist Roidon Raskolnikov kills an elderly pawnbroker and her half-sister and then struggles to convince himself that murder can be justified if committed to demonstrate and secure the power of an extraordinary man. Similarly, the report’s protagonist is the forty-fifth President of the United States, who plots to overthrow his own government in a vain and desperate attempt to cling to power and glory.

I’m not the first commentator to compare Trump to Raskolnikov. New York Times columnist Maureen Dowd beat me to the punch in a 2017 op-ed penned during the Mueller investigation, where she wrote:

“Both men [Trump and Raskolnikov] are naifs who arrive and think they have the right to transgress. Both are endlessly fascinating psychological studies: self-regarding, with Napoleon-style grandiosity, and self-incriminating. Both are consumed with chaotic, feverish thoughts as they are pursued by law enforcement.”

This isn’t to say, of course, that the parallels are exact. Unlike Raskolnikov, for example, Trump will never acknowledge his culpability for the insurrection, which led to the deaths of seven people. The report, after all, isn’t a work of fiction, even if at times it might read like one with chapter headings including “The Big Lie,” “I Just Want to Find 11,780 Votes,” and “Just Call it Corrupt and Leave the Rest to Me.”

And then there is the all-important question of punishment. Raskolnikov ultimately confesses his guilt and is sentenced to prison. Trump, by contrast, remains a free man, and continues to rage on his social media platform—the ludicrously named Truth Social—against his accusers, protesting his innocence and claiming, as always, that he’s the victim of a political witch hunt.

Trump’s prosecution, at least at the federal level (he’s also under serious investigation in the states of Georgia and New York), now rests in the hands of the Justice Department and special counsel Jack Smith. The DOJ has received criminal referrals from the committee for four overlapping federal felonies committed by the former President:

  1. Obstruction of an official proceeding, referring to the joint session of Congress convened on January 6, 2021, to confirm the election of Joe Biden, and the effort to pressure Vice President Mike Pence to refuse to certify Biden’s victory;
  2. Conspiracy to defraud the United States, referring to the former president’s multi-phase scheme to overturn the election;
  3. Conspiracy to make a false statement, referring to the plan to submit false slates of electors to Congress and the National Archives; and
  4. Inciting, assisting, or giving aid and comfort to an insurrection, referring to Trump’s incendiary speech immediately prior to the riot at the Capitol and his behavior during the riot.

The committee has also referred five of Trump’s former aides and associates to the Justice Department: John Eastman, Mark Meadows, Rudy Giuliani, Kenneth Cheseboro and Jeffrey Clark. Trump, however, is the only member of the crew who has been referred for insurrection. The report singles out the ex-commander-in-chief on the insurrection charge, stating “the central cause of January 6th was one man, former President Donald Trump.”

Although the referrals are non-binding, Smith is already in the thick of investigating the insurrection and the plot to overturn the 2020 election, presenting evidence to at least two grand juries. The special counsel is also leading the investigation into Trump’s removal of top-secret government documents to his Mar-a-Lago resort in Florida.

Convicting Trump will not be easy, especially on charges related to January 6. Each of the felonies referred to the Department of Justice requires proof of criminal intent. The government will have to establish beyond a reasonable doubt that Trump knew he had lost the election and was acting with a “corrupt purpose” to obstruct the work of the joint session of Congress or, on the conspiracy referral, that he had an intent to defraud the nation with the submission of fake slates of electors.

It will be particularly challenging to prove that Trump incited or assisted the insurrection as Trump would likely mount a First Amendment defense. In its landmark 1969 decision in Brandenburg v. Ohio, the Supreme Court articulated a two-part test for punishing incendiary speech, holding that the First Amendment protects advocating the use of force or lawbreaking “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added).

Still, it’s easy to understand why the committee chose to cite Trump for insurrection. Trump knew that members of the crowd who had gathered to hear him talk were armed when he urged them to march to the Capitol to “fight like hell.” And amid the ensuing melee, he accused Pence of cowardice for not using his authority as Vice President to change the outcome of the election, seething in a Tweet, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution…USA demands the truth!” Almost immediately after the Tweet was posted, the report notes, “the crowd around the Capitol surged, and more individuals joined the effort to confront police and break further into the building.”

Should Trump be tried and convicted of insurrection, he would face a prison sentence of up to ten years. He would also be barred from holding federal office for life.

So, what are the odds that Trump is finally held to account? Will Jack Smith prove to be Trump’s Porfiry Petrovich, the police investigator who brought Raskolnikov to justice, or will he turn out to be another Robert Mueller? We may have the answer in a matter of months.

The Supreme Court's war on the future: 17 of the Roberts Court's worst decisions

Reasonable minds can differ about the most regressive opinions of the Roberts Court. But here are the decisions that should make any court-watcher’s list.

Crawford v. Marion County (2008): Paving the way for other voter suppression techniques, the court upheld an Indiana law requiring all in-person voters to present a photo ID issued either by the state or the federal government.

District of Columbia v. Heller (2008): Declaring for the first time that the Second Amendment protects an individual right to bear arms.

Citizens United v. FEC (2010): Overturning a century of campaign finance law and sparking the growth of super PACs, the court held that corporations, unions and other groups could spend unlimited money on elections.

Shelby County v. Holder(2013): The court gutted the “preclearance provisions” of the Voting Rights Act, which required advance federal approval of changes to election procedures in jurisdictions with a history of racial discrimination.

McCutchen v. FEC (2014): In a follow-up to Citizens United, the court invalidated limits placed on the aggregate amount of money individuals can donate directly to political candidates during any two-year election cycle.

Burwell v. Hobby Lobby Stores (2014): Exempting “closely held” corporations with religious objections from the Affordable Care Act’s provisions requiring employers to provide workers with health care insurance coverage of contraceptives.

Gossip v. Gross (2015): In a disheartening decision for opponents of the death penalty, the court held that the Eighth Amendment does not require that a method of execution be pain-free.

Trump v. Hawaii (2018): Yielding to the Trump administration’s bigotry, the court upheld the former president’s Muslim travel ban as a proper exercise of executive branch authority.

Janus v. AFSCME (2018): Breaking with over 40 years of labor-law precedent, the court held that public-employee unions may not collect “fair-share” fees from non-union members to help pay for the costs of collective bargaining.

Rucho v. Common Cause (2019): Dealing a crippling to democracy, the court held that issues of partisan gerrymandering are outside the jurisdiction of the federal courts.

Our Lady of Guadalupe School v. Morrisey-Berru(2020): Catholic elementary school teachers are “ministers,” and cannot sue for employment discrimination.

Brnovich v. Democratic National Committee (2021) Upholding two Arizona voter-suppression laws that prevent out-of-precinct voting and so-called “ballot harvesting,” the practice of gathering and submitting mail-in ballots by third parties.

Dobbs v. Jackson Women’s Health Organization(2022): Roe v. Wade and Planned Parenthood v. Casey are overruled.

New York State Rifle & Pistol Association Inc. v. Bruen (2022): New York’s permit system for obtaining an unrestricted license to carry a concealed firearm violates the Second and 14th amendments.

Carson v. Makin (2022): The free exercise rights of parents who live in districts without public secondary schools are violated by a state statute that denies them tuition assistance payments to send their children to religious schools.

Kennedy v. Bremerton School District (2022): The free exercise and free speech clauses of the First Amendment permit a high school football coach to kneel in prayer on the field with students after games.

West Virginia v. Environmental Protection Agency (2022): The Clean Air Act does not give the EPA broad authority to limit carbon emissions from power plants.

The Supreme Court's war on the future: Robert Bork's revenge

This is the first of a multi-part Dig series, The Supreme Court’s War on the Future, investigating how the Supreme Court was remade in the image of Robert Bork.

To fully appreciate and understand the Supreme Court’s hard cut to extremism, start with the failed nomination of Robert Bork in 1987. Bork never made it to the summit of the judiciary, but the legal theory of “originalism” he pioneered now thoroughly dominates the bench.

The Supreme Court’s controlling majority of six Republican activists has embraced originalism as an article of faith and practice. Under the stewardship of Chief Justice John Roberts, the court has deployed its tools and techniques to reinterpret the Constitution and create a legacy of legal devastation with a series of landmark rulings on votingrights, gerrymandering, unionorganizing, the death penalty, environmental protection, guncontrol, abortion and campaign finance. The court’s current session, which opened in early October, promises to deliver more of the same, with cases on “religious liberty” and LGBTQ discrimination, the “independent state legislature” doctrine, affirmative action and more.

Roberts and company are Bork’s ideological offspring and revenge. Their jurisprudence is the culmination of a project that began with Bork long before his rejection by the Senate.

Until his failed Supreme Court nomination, Bork had a storied career. In March 1973, while on hiatus from Yale, Bork joined the Nixon administration as solicitor general. In October of that year, he was named acting attorney general and subsequently followed Nixon’s orders to fire Archibald Cox, the first Watergate special prosecutor, in what became known as the “Saturday Night Massacre”. In 1982, Reagan appointed Bork to the District of Columbia Circuit Court of Appeals, a position he held until 1988.

As a primary architect of originalism, Bork had become by the mid-1980s — along with Ed Meese, Reagan’s attorney general — the face of a legal counterrevolution aimed at reversing the expansion of civil rights and liberties that had been achieved during Chief Justice Earl Warren’s tenure on the court (1953-1969). His mission was to turn back the judicial clock to a pre-New Deal version of the United States.

A prolificwriter as both an academic and an appellate judge, Bork argued at various points in his career that the Constitution contained no implied right to privacy, that Roe v. Wade was wrongly decided, and the Civil Rights Act of 1964 was unconstitutional. He also rejected the “one person, one vote” principle of legislative districting. Bork’s outspokenness and abrasive demeanor set him apart from the growing corps of conservative lawyers and legal scholars that were coalescing in the 1980s, making him a vulnerable target for Democrats determined to keep him off the nation’s highest judicial body.

* * *

The campaign to torpedo Bork’s nomination took shape quickly. On July 1, 1987, the day Reagan proudly announced Bork’s nomination, Sen. Ted Kennedy (D-Mass) took to the senate floor to denounce Bork’s selection to replace retiring conservative jurist Justice Lewis Powell. (Powell is best remembered in progressive circles for a confidential memo he penned in 1971 urging business leaders to become more involved in high-stakes litigation and the selection of judges, advice that led to the formation of institutions such as the Business Roundtable, the Heritage Foundation, the Pacific Legal Foundation, the Cato Institute, the Federalist Society and the Chamber of Commerce National Litigation Center.)

In words that would come to doom Bork’s nomination and spark a roiling debate about originalism that continues to this day, Kennedy decried what he called “Robert Bork’s America” as “a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

For 12 days in September, the Senate Judiciary Committee debated Bork’s qualifications, and heard five days of candid testimony from Bork himself. Much of the scrutiny focused on originalism as a method of constitutional interpretation and judicial decision-making. The prominent constitutional scholars that testified against Bork included Professor Laurence Tribe of Harvard and Professor Philip Kurland of the University of Chicago, who had worked as a consultant to the Senate Judiciary Committee during the Watergate investigation.

Outside the D.C. Beltway, another fierce battle took place. By the time the Senate hearings commenced, anti-Bork forces had raised a war chest of $12 million. In a manner similar to today’s political campaigns, the money was spent on focus groups, opinion polls, media consultants and especially on print, radio and TV advertising.

A newspaper ad taken out by the National Abortion Rights Action League asserted a vote for Bork was the equivalent of voting for a politician who threatened to reverse “every advance women have made in the 20th century.” Similar ads were placed by the National Education Association and Planned Parenthood.

Most devastating of all was a 60-second television spot paid for by People for the American Way and narrated by the famed actor Gregory Peck. In his best Atticus Finch voice, Peck sounded the tocsin:

"Robert Bork wants to be a Supreme Court justice, but the record shows he has a strange idea of what justice is. He defended poll taxes and literacy tests which kept many Americans from voting. He opposed a civil rights law that ended 'whites only' signs at lunch counters. He doesn’t believe the Constitution protects your right to privacy. And he thinks that freedom of speech does not apply to literature and art and music. Robert Bork could have the last word on your rights as citizens. But the Senate has the last word on him.”

On the other side of the divide, Reagan went to great lengths to salvage the nomination, describing Bork’s appointment as his “top domestic priority.” But even the “Great Communicator” couldn’t get his message to resonate. Public opinion, which trended slightly in favor of Bork in early September, turned decisively against him by the end of the month. A Tribune Media poll released on Sept. 28 showed the public opposed the nomination by nearly a 2-to-1 margin.

Bork’s prospects officially came to an end on Oct. 23, 1987. With six Republicans crossing party lines, the full Senate turned thumbs down against him by a vote of 58-42, the most lopsided vote against a high court candidate in U.S. history. His fall from grace was colossal. Ever since, judicial nominees have come to be wary of being “Borked,” a term that has entered the lexicon as a synonym for rejection in the face of adverse publicity and harsh cross-examination. Bork resigned from the Court of Appeals in 1988 and returned to academia, becoming a dyspeptic critic of liberalism, bemoaning the decline of Western culture, which he addressed with special bile in his book, Slouching Toward Gomorrah: Modern Liberalism and American Decline (1996). He died in relative obscurity in 2012.

* * *

Bork was defeated, but originalism lived on. Even before his nomination, the theory had established a beachhead on the court with the confirmation of Antonin Scalia in 1986. Although Scalia was in many ways as doctrinaire as Bork, the Senate unanimously confirmed him 98-0 on the same day it voted in favor of William Rehnquist’s elevation to the position of chief justice by a margin of 65-33. Having spent their capital in a losing bid to block Rehnquist, Senate Democrats were either too dispirited, disorganized or not yet fully aware of the dangers and potency of originalism to put up a fight against the first Italian-American justice. Compared to the treatment Rehnquist and Bork received, Scalia’s confirmation hearing was a lovefest.

Scalia was nine years younger than Bork and had served with him on the D.C. Court of Appeals. Scalia also had a background in academia. In 1982, as a law professor at the University of Chicago, Scalia helped organize one of the first chapters of the Federalist Society, and became the chapter’s faculty advisor. He remained active in the society as a coveted speaker and symposium guest until his passing in 2016.

In 1991, the Senate narrowly confirmed another self-declared originalist and Federalist Society member, Clarence Thomas, after a bitter confirmation hearing highlighted by Anita Hill’s explosive allegations of sexual harassment. Nominated by President George W. Bush, Thomas also came to the high court by way of the D.C. circuit, but had produced only a modest paper trail, obscuring his future political machinations. Two years later, however, according to The New York Times, Thomas told two of his law clerks that he planned to serve on the court until 2034, and until then would make the lives of liberals “miserable.”

Scalia and Thomas brought a new brand of originalism to the court that arose in response to critics who charged that the actual intentions of the framers of the Constitution were too varied, conflicting and often ambiguous to serve as a basis for judicial decision-making. Instead of emphasizing original intent, they and other “new originalists” focused on the “original public meaning” of Constitutional provisions, which, they contended, could be ascertained from the recorded debates of the founding era and from such sources as late 18th-century dictionaries. The key, as law professors Michael Rappaport of the University of San Diego and John McGinnis of Northwestern University, explained in an influential 2007 law review article would be to determine “how a reasonable person at the time of the Constitution’s adoption would have understood its words and how they thought they should be interpreted.”

All originalists — whether of the old or new stripe — contend that their approach limits the subjectivity of judges and acts as a restraint on judicial activism.

In fact, originalism does nothing of the sort. Fordham University history professor Saul Cornell summed up the fatal flaws of the theory in a scathing 2011 Dissent article, New Originalism: A Constitutional Scam. The first academic iteration of Originalism, Cornell wrote,rested on “shaky historical foundations” because the Founders “did not speak with a single voice on most constitutional questions.”New Originalism, embodied by the more activist Federalist Society, was in Cornell’s estimation even more dubious, amounting to “little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”

Result-oriented judging, of course, has existed from the earliest days of the republic. Originalism in a nascent form existed long before the term was attached to a specific legal philosophy in the latter part of the 20th century. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. citizens. Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the 13th, 14th, and 15th amendments, is another originalist landmark.

Originalism in a nascent form existed long before the term was attached to a specific legal philosophy in the latter part of the 20th century. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. citizens.

As the court entered the second decade of the 21st century, however, it remained divided between conservatives, liberals and centrists, often dividing 5-4 in major rulings. The ascension of Donald Trump as the 45th president in 2016 and the death of Justice Ruth Bader Ginsberg in 2020 radically altered the balance.

During the 2016 presidential campaign, Trump promised that, if elected, his judicial nominees would “all [be] picked by the Federalist Society.” Before the election, Trump released two lists of Supreme Court candidates, both compiled by the Federalist Society and the far-right Heritage Foundation.

After the election, Trump proved for once true to his word, meeting with Leonard Leo, then the Federalist Society’s executive vice president, to map out plans for selecting Scalia’s successor. Soon thereafter, Leo took a leave of absence from the society to formally advise Trump on the confirmation process for both Neil Gorsuch, who succeeded Scalia, and Brett Kavanaugh, who replaced the retiring centrist Anthony Kennedy. Leo had done the same in 2005-06, counseling President George W. Bush on the nominations of Roberts and Samuel Alito.

It’s easy to understand why Trump was attracted to the Federalist Society. From its fledgling beginnings as a debating club at a handful of elite law schools in the early 1980s, the society had mushroomed into a nationwide network of 70,000 economic, social and Christian conservatives, along with right-wing libertarians, organized in lawyers’ chapters in 90 cities, and with student affiliates in nearly every major law school. No longer a shoestring operation, the society’s 2016 budget exceeded $26 million, raised in large part from contributions by right-wing philanthropists like the Koch brothers and other deep-pockets like the Mercer, Scaife, and Lynde and Harry Bradley foundations.

Trump also pledged during the 2016 campaign that his Supreme Court nominees would be “originalists” in the mold of Scalia. He fulfilled that pledge, too, with the selection of Gorsuch, Kavanaugh and, finally, Amy Coney Barrett. Barrett’s confirmation in 2020 brought the number of former or current Federalist Society members on the tribunal to six. (Though Roberts says he doesn’t recall belonging to the Federalist Society, the group listed him as a member in its 1997-98 directory.)

For the most part, Barrett followed the post-Bork strategy of other high-court nominees, refusing in her confirmation hearing to give direct answers to important questions such as whether the Constitution requires a peaceful transfer of power, or if a president can pardon himself for federal crimes.

New Originalism, embodied by the more activist Federalist Society, was in Cornell’s estimation even more dubious, amounting to “little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”

But when asked by Sen. Diane Feinstein (D-CA) what it means to be an originalist, Barrett readily replied: “In English, that means that I interpret the Constitution as a law and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.” In an exchange with Sen. Amy Klobuchar (D-MN), she also revealed that Roe v. Wade was not a precedent the court could never reconsider and overrule.

And so, the stage was set for the court to implement an even more regressive form of originalism. In June, it handed down its opinions in Dobbs v. Jackson Women’s Health Organization and New York Rifle & Pistol Association v. Bruen. In Dobbs, the court not only upheld a restrictive Mississippi abortion law, but finally made the far right’s fevered dream of overturning Roe v. Wade and Planned Parenthood v. Casey come true. In Bruen, the court struck down a century-old New York state regulation on concealed handgun permits as violative of the Second Amendment.

In both cases, the court abandoned the traditional methods of judicial scrutiny that require judges to determine the constitutionality of challenged laws by balancing the governmental interests advanced by the laws in question against the competing rights of individuals affected by the laws. In place of interest-balancing, the court substituted a test based exclusively on the Justices’ highly selective reading of history and their sense of tradition.

Writing for a 5-4 majority in Dobbs, Alito advanced the march toward right-wing judicial supremacy, declaring that both Roe and Casey were “egregiously wrong from the start” because the word “abortion” doesn’t appear anywhere in the first eight amendments to the Constitution, or anywhere else in the text. He also held that abortion cannot be considered an implied or “unenumerated” fundamental right under the 14th Amendment’s due process clause — as Roe and Casey both held — because it is not “deeply rooted in [our] history and tradition.” As a result, he concluded, the court was free to overrule Roe and Casey unconstrained by the doctrine of stare decisis, which holds that judges should adhere to precedent.

A crowd gathers at the Supreme Court the night after the release of Alito’s draft majority opinion overturning Roe v. Wade. Photo: Victoria Pickering / Flickr / CC BY-NC-ND 2.0

Instead of respecting precedent, Alito reached deep into the bowels of Anglo-American common law to override it. He cited, among other sources, the work of Henry de Bracton, a 13th-century English cleric and judge who condemned abortions as homicide, and a 17th-century English jurist who described abortion as a “great crime” and sentenced at least three women to death for witchcraft. By the time the 14th Amendment was ratified in 1868, Alito raged on, “three-quarters of the States [had] made abortion a crime at all stages of pregnancy,” in order to prove his point that abortion rights are not deeply rooted in our history.

The only solution, in Alito’s view, was to strip abortion of its Constitutional protections and return the issue to “the people’s elected representatives,” opening the door to state abortion bans and the possibility of a future federal statute outlawing abortion nationwide.

Alito’s reading of history was shoddy. Not only did he give no weight to the 50 years that Roe had been the law of the land, but he ignored the actual early history of abortion rights in America. As University of Illinois history professor Leslie J. Reagan explained in her definitive study, When Abortion Was a Crime, “During the eighteenth and early nineteenth centuries…abortions were illegal only after ‘quickening,’ the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy).”

Repudiating Roe and Casey was also unnecessary. The court easily could have upheld the Mississippi statute, which outlawed almost all abortions after 15 weeks, without scrapping the federal right entirely, as Roberts urged in a separate opinion.

Clarence Thomas wrote the 6-3 opinion in Bruen, which was joined by all the court’s Republican appointees, including Roberts. Like Alito, Thomas applied a specious history and tradition test to strike down New York’s long-standing handgun permit system. In so doing, he dismissed the broad history of gun regulation in the U.S., dating back to the earliest days of the republic. As Fordham’s Professor Cornell, one of the foremost authorities on the actual history of the Second Amendment, observed in a critique of Bruen published by SCOTUSBlog:

The originalist methodology applied by Thomas has one set of rules that apply to interpreting legal texts that support gun rights, and another more demanding set of standards that apply to those that undermine them. The Thomas version of originalism might be summarized as follows: No amount of evidence is enough to support gun control, but no iota of evidence is too little to legitimate gun-rights claims. If one of the goals of originalism was to limit judicial discretion (a value few originalists continue to espouse now that they have a supermajority on the court), then the Thomas rule does the opposite. It provides a license to cherry-pick evidence with reckless abandon if the materials support the ideological agenda of the Federalist Society.

Combined with the public leak of the draft of Alito’s Dobbs opinion in May and the fast-brewing scandal involving the role of Ginni Thomas in events related to the Jan. 6 insurrection, the court’s move to the right has triggered a crisis of legitimacy. In increasing numbers, Americans have lost trust in the court as an institution, and have come to see it correctly as a political body rather than an impartial arbiter of justice. The Dobbs decision is deeply unpopular, with 60% of respondents in recent rolls disapproving of the ruling. According to a June Gallup survey, Americans’ confidence in the court has plummeted to a new low. A mere 25% of respondents told Gallup they had “a great deal” or “quite a lot” of confidence in the Court.

And more bad decisions are on the horizon. In his concurring opinion in Dobbs, Thomas called upon his benchmates to revisit such privacy-based precedents as the right to contraception (Griswold v. Connecticut, 1965), the right to engage in same-sex intimacy (Lawrence v. Texas, 2003), and the right to same-sex marriage (Obergefell v. Hodges, 2015). Thomas and Gorsuch are also on record as favoring reconsideration of New York Times v. Sullivan (1964), another product of the Warren Court that shields the media from potentially crippling defamation lawsuits. Reaching even farther into the future, originalist academics such as the University of San Diego’s Rappaport have questioned the constitutionality of Social Security and Medicare.

Protest in front of the US Supreme Court in January 2017. Photo: Geoff Livingston / Flickr / CC BY-NC-ND 2.0

There is a better and more reality-centered way to adjudicate constitutional issues. Originalism’s rival, known variously as “living or dynamic constitutionalism,” asserts that while the text of the Constitution may be the starting point of any analysis, the meaning of the Constitution should evolve over time and accommodate contemporary values, social needs and changing traditions.

A good example of the alternative can be found in Kennedy’s majority opinion in Obergefell. As the court’s swing justice, Kennedy sometimes adopted originalism, as he did in his 2010 opinion in Citizens United v. F.E.C. In Obergefell, he took a full-throated living constitutionalism approach, writing:

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

It is no small irony that Kennedy was nominated to the court after Bork was defeated. But Kennedy retired in 2018, replaced by Kavanaugh, whose confirmation Senate Democrats were unable to halt.

There’s no denying the future of the Supreme Court looks grim. Still, as the successful fight against Bork long ago demonstrated, hope should never be abandoned. With enough public pressure and effective organizing, the court can be reformed and brought to serve the nation’s needs in the 21st century.

The prospects for reform will be subject of part II of this series.

Dare we hope: Will Special Counsel Jack Smith do what Robert Mueller would not?

If you’re feeling a bit of deja vu all over again (apologies to Yogi Berra) after Attorney General Merrick Garland’s appointment of a new special counsel to investigate Donald Trump, join the club.

In 2017, former FBI Director Robert Mueller was appointed as a Justice Department special counsel to investigate Trump in connection with Russian meddling in the 2016 election. After two years of dogged probing accompanied by breathless media hype, Mueller produced a 448-page report that essentially cleared Trump of conspiring with the Russians, but laid the groundwork for prosecuting him on multiple charges of obstruction of justice. The report, however, was subsequently dismissed by then-Attorney General Bill Barr, and Mueller stumbled badly in his testimony before the House in July 2019. Mueller has since receded into private life and relative obscurity.

This isn’t to say that the new special counsel—longtime prosecutor Jack Smith—will meet the same fate. Unlike the seventy-eight-year-old Mueller, who came out of retirement to accept his position, Smith, fifty-two, is at the peak of his legal career. His resume includes stints with both the District Attorney in New York County and the U.S. Attorney’s Office. In 2010, he was put in charge of the Justice Department’s Public Integrity section, a post he held for five years. Since 2018, he has worked with the International Criminal Court at The Hague, investigating war crimes.

In short, Smith is eminently qualified. But can he deliver?

On the plus side, Smith will be unconstrained by Justice Department policy prohibiting the prosecution of sitting presidents. As a former chief executive, Trump is fair legal game.

Smiths’ appointment order authorizes him to investigate both the January 6 insurrection and the plot to interfere with the lawful transfer of power as well as the removal of government documents to Mar-a-Lago. The order equips Smith with subpoena power to fulfill his mission, and clarifies that he will not take over the prosecution of any individuals who physically stormed the Capitol on January 6, 2021. The Justice Department will continue to furnish line deputies to handle those cases, allowing Smith to focus on Trump and the ex-President’s top advisors and co-conspirators.

In his November 18 press conference announcing Smith’s appointment, Garland pledged to provide the new special counsel with the resources needed to conduct his work “quickly and completely.” This means that Smith will have his own budget and office space, and that, in contrast to Mueller, he won’t have to build his prosecutorial team from scratch. Justice Department lawyers have been leading federal grand-jury probes of Trump’s role in the insurrection and the Mar-a-Lago documents case for many months, and Smith will be able to bring them on board. Putting the existing Trump investigations under the centralized supervision of a single special counsel should also yield greater efficiency, enabling Smith to hit the ground running.

In making his decision, Garland hewed closely to the text of the Justice Department’s regulations, which direct the Attorney General to name a special counsel in situations that present either a conflict of interest for the department or “other extraordinary circumstances” that require such a move “in the public interest.” Smith’s appointment was in the public interest, Garland said, because of “the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well.”

As manycommentators have noted, Garland hopes that putting day-to-day operations in the hands of a special counsel will help insulate the department from charges of bias and politicization.

Unfortunately, this is where Garland’s reasoning badly goes astray. Political independence and neutrality are lofty ideals for the Justice Department, but Trump and the MAGA movement will never accept Smith’s appointment.

Within hours of the appointment, House Representative Marjorie Taylor Greene of Georgia took to Twitter to demand Garland’s impeachment. Trump was even more unhinged. In a diatribe broadcast from Mar-a-Lago on November 18, he branded Smith “a super radical left special counsel,” and termed his appointment “appalling” and “a horrendous abuse of power.” Reprising the tenor of his incendiary speech before the January 6 riot at the Capitol, he urged his supporters to resist the special counsel, telling them, “You people have to fight. You have to fight. You have to be strong.”

Garland has also been criticized by some prominent liberal and progressive observers who think Smith’s appointment will do nothing to insulate the Justice Department from partisan attacks and will, at best, lead to delays in returning an indictment against Trump. The Nation’s Elie Mystal put it this way during an appearance November 18 on MSNBC’s The Beat with Ari Melber:

“There is not a single argument that I have heard in defense of Merrick Garland’s self-serving, pearl-clutching conference that he gave this morning that points–that answers the critical question, if he was going to do this, if he believes this is in the public interest, then why didn’t he believe that was in the public interest 18 months ago when he easily could have done the exact same thing?...

“If Merrick Garland thinks that kicking this to Jack Smith from The Hague is going to take down the partisan pressure on him and make the right wing feel like this is a fair process, he’s an idiot.”

While I am not prepared to go as far as Mystal (Garland may be spineless but he’s no dummy), it should be emphasized that the final decision on whether to prosecute Trump will rest with the Attorney General. Smith may call for an indictment, but the buck will stop with Garland, just as it did with Bill Barr and Robert Mueller.

This time, things may be different. Hope, as they say, springs eternal.

'Revitalized fascism': The midterms are one of the last guardrails left to preserve our fraying democracy

This article was originally published on

If the Republicans take back either the House or Senate tomorrow, the stage will be set for Donald Trump’s return in 2024. If that happens, there will be few, if any, guardrails left to preserve what is left of our damaged and fraying democracy.

Since 2016, the MAGA movement Trump leads has morphed from a retrograde white nationalist crusade to a full-blown neo-fascist force. This fact will become all-too apparent in a MAGA Congress led by Marjorie Taylor Greene, Lauren Boebert and Paul Gosar on the House side, and Ron Johnson, Josh Hawley and Ted Cruz in the upper chamber. Think of a media landscape dominated by an ascendant Steve Bannon and Breitbart as the MAGA movement drowns out what few dissident voices remain within the GOP.

All that is on the line tomorrow. And don’t count on the courts if Trump returns to power. The legal system, already infested by jurists hand-picked by the Federalist Society, will offer fewer and fewer safeguards as the movement undertakes to dismantle Social Security, Medicare, civil rights, environmental protection, trade-union rights, women’s rights and all vestiges of what it derisively refers to as the “administrative state.”

We are at an inflection point in our history where the choice confronting us is one between democracy — with all of its frailties and shortcomings — and a renewed and revitalized fascism.

Fascism is a loaded term, but if used correctly, it applies to Trumpism.

In his seminal study, “The Anatomy of Fascism,” Robert Paxton defined fascism as "a form of political behavior marked by obsessive preoccupation with community decline, humiliation or victimhood and by compensatory cults of unity, energy and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion.”

Trump and Trumpism similarly embody the 14 common factors of fascism identified by the great Italian writer Umberto Eco in his 1995 essay, “Ur Fascism”:

  • A cult of traditionalism.
  • A rejection of modernism (cultural, rather than technological).
  • A cult of action for its own sake and a distrust of intellectualism.
  • A framing of disagreement or opposition as treasonous.
  • A fear of difference. Fascism is racist by definition.
  • An appeal to a frustrated middle class — either due to economic or political pressures from both above and below.
  • An obsession with the plots and machinations of the movement’s identified enemies.
  • A requirement that said enemies be simultaneously seen as omnipotent and weak, conniving and cowardly.
  • A rejection of pacifism. Life is permanent warfare.
  • Contempt for weakness.
  • A cult of heroism.
  • Hypermasculinity.
  • A selective populism, relying on chauvinist definitions of “the people” that it claims to speak for.
  • A heavy usage of Newspeak — impoverished vocabulary, elementary syntax and a resistance to complex and critical reasoning.

As the current situation demonstrates, fascism is by no means a foreign phenomenon restricted to South American banana republics or failed European states. As University of London professor Sarah Churchwell explained in a June 22, 2020 essay published in the New York Review of Books, fascism has deep roots in the United States, starting with the resurgence of the Ku Klux Klan in the 1920s and extending to the rise of the German-American Bund in the 1930s to the ascendance of Depression-era demagogues like Huey Long, and the election of Trump in 2016.

Churchwell’s article is fittingly titled, “American Fascism: It Has Happened Here.” In it, she offers yet another working definition of fascism, noting that while fascist movements differ from nation to nation, they are united by “conspicuous features [that] are recognizably shared.” These include:

“[N]ostalgia for a purer, mythic, often rural past; cults of tradition and cultural regeneration; paramilitary groups; the delegitimizing of political opponents and demonization of critics; the universalizing of some groups as authentically national, while dehumanizing all other groups; hostility to intellectualism and attacks on a free press; anti-modernism; fetishized patriarchal masculinity; and a distressed sense of victimhood and collective grievance. Fascist mythologies often incorporate a notion of cleansing, an exclusionary defense against racial or cultural contamination, and related eugenicist preferences for certain ‘bloodlines’’ over others.”

No one has summarized the perils of Trumpism with more insight than the celebrated linguist and political commentator Noam Chomsky. In a June 2021 interview with Truthout, Chomsky remarked:

“The term ‘neoliberal proto-fascism’ captures well both the features of the current [Republican] party and the distinction from the fascism of the past. The commitment to the most brutal form of neoliberalism is apparent in the legislative record, crucially the subordination of the party to private capital, the inverse of classic fascism. But the fascist symptoms are there, including extreme racism, violence, worship of the leader (sent by God, according to former Secretary of State Mike Pompeo), immersion in a world of ‘alternative facts’ and a frenzy of irrationality.”

In light of the looming election, it is worth recalling a searing 2016 column by Adolph Reed Jr., in which the renowned political scientist urged readers to “Vote for the Lying Neoliberal Warmonger: It’s Important.” Reed argued that the dangers of allowing Donald Trump to win the presidency were so great, the American left had no choice but to hold its collective nose and keep Trump out of office by voting for Hillary Clinton, a politician Reed plainly despised.

To drive home his message, Reed cited an article written by Harold Meyerson for theAmerican Prospect, in which Meyerson compared the political climate of 2016 in the United States to Germany in the early 1930s. As the Nazi Party gained strength those many decades ago, the Communist Party, led by Ernst Thalmann, refused to join forces with the liberal and weak Social Democrats against Hitler, believing the Social Democrats to be a greater threat to the working class than the fascists.

We all know too well what tragedies followed. So do your part, and vote.

Charging Donald Trump is possible. And yet…

The eyes of history are on a group of state and federal prosecutors

“You come at the king, you best not miss.”

— Omar Little, The Wire

It has been 20 months since an enraged and armed mob of Trump supporters stormed the U.S. Capitol, seeking to stop the peaceful transfer of power. Some in the crowd called for then-Vice President Mike Pence — the constitutionally designated presiding officer at the joint session of Congress convened to certify Joe Biden’s election victory — to be hanged. Some members of the House and Senate hid, while others fled for their lives. Five people died. Far more, including 140 police officers, were injured.

This article was originally published on

What happened on January 6, 2021 has aptly been termed an insurrection — a violent attempt to overturn the results of a democratic election and, in effect, overthrow the government. Since then, an estimated 928 people have been arrested and charged with federal crimes for participating in the attack. Scores have been convicted.

But the man at the center of the insurrection — Donald Trump — remains unindicted. Far from being held to account, Trump has solidified his hold on the Republican Party. The “big lie” that the election was stolen has become an article of faith and a driving force for the neo-fascist movement he embodies and leads, posing an existential threat to the survival of democracy.

In the immediate aftermath of the insurrection, even after Trump was acquitted in his second impeachment trial, it appeared that justice would come quickly for the former president. Even Senate Minority Leader Mitch McConnell, who shamelessly voted for acquittal, predicted a day of reckoning would arrive. In an uncharacteristically impassioned speech on February 13, 2021, McConnell told his colleagues that Trump was “practically and morally responsible for provoking” the assault on the Capitol:

Far from being held to account, Trump has solidified his hold on the Republican Party.

“President Trump is still liable for everything he did,” McConnell declared. “He didn’t get away with anything. Yet. Yet. We have a criminal justice system in this country. We have civil litigation. And former [presidents] are not immune from being accountable by either one.”

It was the second “yet” that got to me then, and that lingers still.

To be sure, Trump has been sued civilly many times — most notably, by New York Attorney General Letitia James in a massive bank and insurance fraud filing unrelated to the insurrection — but we’re still waiting for the criminal justice system to drop the hammer.

This isn’t to say that the justice system has been quiet. To the contrary, Trump has attracted the attention of multiple criminal grand juries, and the legal vise appears to be closing on several fronts. Still, there are no signs of an imminent indictment.

In part, the holdup may be due to good old-fashioned hand-wringing. Over the past few months, a debate has unfolded among legal scholars and commentators about the wisdom of prosecuting Trump and the potential political and social destabilization an indictment could spark. Referring to the search at Mar-a-Lago, Trump has warned that the country would face “problems … the likes of which perhaps we’ve never seen” if he is indicted.

Plainly, there are inherent risks in breaking new legal ground with the indictment of a former president. Apart from the rather comical arrest in 1872 of President Ulysses S. Grant by a District of Columbia police officer for driving his carriage through the streets of Georgetown at an excessive speed, no American president has ever been charged with a criminal offense. Not Andrew Johnson, not Richard Nixon, not Bill Clinton and not — at least thus far — Trump.

A failed Trump prosecution would be a lose-lose proposition, legally and politically. But the greater risk lies in doing nothing. The rule of law begs for Trump to be held accountable.

One of the central myths of American democracy is the principle that no one is above the law. The myth is drilled into us from our earliest days in social studies classes to the platitudes we still hear every July Fourth. Yet the myth in practice has all too often proven to be just that — a lofty notion that at best applies to ordinary Americans but allows the rich and powerful to do exactly as they please with few adverse consequences.

While it can be tempting to fall into despair at the lack of resolution, there are three good reasons to maintain hope.

One of them is a county-level Georgia district attorney named Fani Willis. This past May, the Fulton County D.A. convened a special grand jury to investigate Trump and others for trying to alter the state’s 2020 election results. In an interview with The Washington Post in September, Willis said her office had examined about “65% of the dozens of witnesses” she wants to question:

A failed Trump prosecution would be a lose-lose proposition, legally and politically. But the greater risk lies in doing nothing.

The D.A.’s witness list is impressive. In June, Georgia Secretary of State Brad Raffensperger, whom Trump pressured to “find” an additional “11780 votes,” took the stand. Two months later, she grilled Rudi Giuliani and attorney John Eastman, a former law school dean and clerk for Supreme Court Justice Clarence Thomas who is generally credited with devising the legal framework for Trump’s attempted coup d’état.

And Willis remains determined to move forward, waging dogged legal battles with Sen. Lindsey Graham attorney Sidney Powell and Trump’s last chief of staff, Mark Meadows to compel them to take the oath, as well.

Willis also told the Post, “If indicted and convicted, people are facing prison sentences. The decision to subpoena or bring charges against Trump, she added, will be made “late this fall.”

Unfortunately, under Georgia law, special grand juries are investigatory only. They cannot return indictments. To charge Trump or anyone else with state crimes, Willis will have to complete her special inquiry and open a regular grand jury, a process that would likely bleed over into 2023.

A second front is active in New York City, where the Trump Organization is currently on trial for running an alleged 15-year conspiracy to commit tax fraud. In August, Allen Weisselberg, the company’s chief financial officer, pleaded guilty to the same charges. Under the terms of his plea bargain, Weisselberg will serve five months in jail instead of a long prison term. He will also testify as the prosecution’s star witness.

If the Trump Organization is found guilty, it could face stiff financial penalties. But the case has nothing to do with Trump’s conduct as president, and in any event, Trump personally has not been indicted. In April, Manhattan District Attorney Alvin Bragg, who is in charge of the prosecution, opted to suspend a grand jury probe against Trump himself. A win against Trump’s company, however, could prompt Bragg to reopen the probe.

Then there are the ongoing (and accelerating) investigations of Trump at the federal level.

A grand jury is investigating Trump for absconding from the Oval Office with a trove of classified and top-secret documents and stashing them at his Mar-a-Lago beach and golf resort in Palm Beach, Florida — potentially violating a section of the Espionage Act and two otherfederal criminal statutes that prohibit the concealment or removal of federal records, and the destruction, mutilation or alteration of records to obstruct a federal investigation. The statutes prescribe punishments ranging from three to 20 years in prison.

According to The Washington Post, some of the documents found at Mar-a-Lago contain sensitive information on Iran’s missile program and U.S. intel on China. It’s hard to imagine any legitimate purpose Trump had for taking and retaining such items.

However, progress in the investigation has been slowed by a set of arguably incompetent rulings issued by U.S. District Court Judge Aileen Mercedes Cannon, including one appointing a special master to review the Mar-a-Lago search. A 41-year-old with no trial experience as a lawyer but enthusiastically endorsed by the Federalist Society, Cannon was nominated to the bench by Trump and confirmed (with some Democratic votes) by McConnell’s lame-duck Republican-controlled Senate on November 13, 2020.

A second federal grand jury is reportedly examining Trump’s part in the plan to create fake slates of electors in seven swing states. The federal probe overlaps with Willis’ investigation, but is even broader. A third federal grand jury is looking into the fundraising practices of Trump’s Save America leadership PAC during the last election.

Most critically of all, the Department of Justice has expanded its inquiry into the insurrection to include Trump’s involvement in the attack and the possibility of charging him and other high-ranking aides with seditious conspiracy, incitement of insurrection and obstruction of Congress:

Delay is often Trump’s preferred legal strategy.

For the time being, however, the DOJ is focused on the rioters who physically breached the Capitol, and in particular, the Oath Keepers militia group. Five members of the group are on trial in Washington, D.C., for seditious conspiracy. The case is expected to conclude later this month. Should the DOJ prevail, the prospects of bringing similar charges against Trump could improve significantly.

Finally, there are the hearings conducted by the House select committee investigating the Jan. 6 attack. In a historic step taken on October 21, the committee issued a subpoena to Trump, directing him to appear for questioning on Nov. 14, either in person or via video link. Trump has boasted that he might comply if his appearance is broadcast live. More likely, he will fight the subpoena in court to avoid committing perjury or taking the Fifth, hoping the panel will be disbanded in January if the GOP takes over the House in the midterm elections. Delay is often Trump’s preferred legal strategy.

Until the committee is dissolved, it will have the option of referring Trump to the DOJ for prosecution, as it did with Steve Bannon, who was subsequently tried and convicted of contempt of Congress, and sentenced to serve four months in jail, pending resolution of his appeal. But such referrals are non-binding, and there is no assurance the DOJ would heed a Trump referral. The final decision would be up to Attorney General Merrick Garland.

Garland, Willis and Bragg — the names sound like the partners of a high-profile law office — have a historic opportunity to breathe some much-needed life into the embattled but bedrock American ideal of equal treatment under the law. They must act, and the sooner the better. What’s left of our tattered and very imperfect democracy hangs in the balance.

Unequal justice: Donald Trump’s war on the First Amendment will one day reach the Supreme Court

The next time you pick up a magazine or go online to read an article criticizing Donald Trump or any of his corrupt enablers, give thanks to the U.S. Supreme Court for protecting freedom of the press.

Of course, I’m not referring to the current Supreme Court. The current court is dominated by a hard-right majority that doesn’t give a jurisprudential fig about sustaining independent media.

I’m referring to the Supreme Court of a bygone era; specifically, to the landmark 1964 case of New York Times v. Sullivan, which for the first time placed constitutional limits on the power of public officials to sue for defamation.

The Sullivan case arose from a full-page ad taken out in The New York Times by civil rights leaders in 1960 to raise funds for Martin Luther King, Jr. and other activists who had been arrested and abused by police in Montgomery, Alabama. Although the main thrust of the ad was spot on, it contained a few factualerrors, such as misstating the number of times King had been arrested, and claiming that police had padlocked a college dining hall in an attempt to intimidate protesting students.


The advertisement published in The New York Times on March 29, 1960, that led to Sullivan's defamation lawsuit. / Committee to Defend Martin Luther King and the Struggle for Freedom in the South.

Citing the inaccuracies, Montgomery police commissioner L. B. Sullivan sued the Times for defamation in state court. He prevailed, and an all-white jury awarded him $500,000 in damages.

When the Sullivan verdict was rendered, defamation lawsuits were governed exclusively by state law, and they were often slanted heavily in favor of plaintiffs, especially rich and well-connected ones who could afford steep litigation costs. To prevail, plaintiffs only had to establish that they had been defamed by a preponderance of the evidence—the lowest standard of proof in our legal system.

In many instances, the only viable defense available to reporters, publishers, and ordinary people who chose to speak out against government misfeasance was that their allegations were true in all respects. As a practical matter, this meant that anyone wishing to criticize the wealthy and the powerful did so at considerable personal risk.

The New York Times appealed the Sullivan decision, and fortunately, the Supreme Court under the leadership of the legendary Chief Justice Earl Warren granted review.

By the time the appeal reached the high court, there were at least ten other libel suits pending against the Times that had been lodged by local and state officials in Alabama alone. Together, the suits sought $5,600,000 in damages, an enormous sum in the early 1960s. The litigation was part of a broad strategy employed by Southern racists to use the courts to bankrupt newspapers that were covering the civil rights movement, and in the process undermine the movement itself.

The Supreme Court realized the magnitude of the issue and rose to the moment.

On March 9, 1964, the court overturned the Sullivan verdict. Writing for a unanimous bench, Justice William Brennan reasoned that our “profound national commitment” to “uninhibited, robust and wide-open debate” required protection under the First and Fourteenth Amendments, even when the debate “includes vehement, caustic and sometimes unpleasantly sharp attacks.” Henceforth, the court held, public officials would be precluded from recovering damages for allegedly defamatory statements related to official conduct unless they established by “clear and convincing evidence” (a far higher standard of proof) that such statements were made with “actual malice”—that is, that they were made with the knowledge that they were false, or with reckless disregard for the truth.

Sullivan constitutionalized the law of defamation, establishing the actual malice standard throughout the country. In a series of subsequent decisions in the late 1960s and early 1970s, the court extended Sullivan and the actual malice rule from “public officials” to “public figures,” as Trump has become since leaving the White House.

The American right has never accepted Sullivan and the protections it offered the media. Donald Trump has been particularly eager to undermine those protections, and he remains on the attack.

In 2006, Trump sued Time Warner Books and writer Timothy O’Brien, claiming that he had been libeled in a biography O’Brien had written, TrumpNation: The Art of Being The Donald. The alleged defamation was O’Brien’s assertion that, considering all of the real estate huckster’s assets and liabilities, Trump’s net worth was actually in the neighborhood of $150 million to $250 million rather than the $5 to $6 billion he had claimed.

After five years of litigation, O’Brien won a state appellate court ruling in 2011, granting summary judgment in his favor and finding that Trump could not, as a matter of law, meet the Sullivan test of actual malice. For all the mischief he had caused, Trump was ordered to fork over $1 million in legal fees.

But Trump was unbowed.

Throughout the 2015-2016 presidential campaign, he pledged to change the nation’s defamation laws, effectively declaring war on the First Amendment. In a February 2016 rally in Fort Worth, Texas, he told a cheering crowd, “I think the media is among the most dishonest groups of people I’ve ever met. They’re terrible. If I become President, oh, do they have problems. They’re going to have such problems.”

He added: “One of the things I’m going to do if I win, and I hope we do, and we’re certainly leading, is I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws so that when The New York Times writes a hit piece, which is a total disgrace, or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

In 2020, Trump’s election campaign filed defamation complaints against The New York Times, CNN, and The Washington Post. Only the case against the Post is still pending. The others were quickly dismissed for running afoul of Sullivan.

But Trump still wasn’t done.

Earlier this month, he sued CNN again for defamation, alleging, among other things, that the network had maligned him when various program hosts and guests labeled his claims of 2020 election fraud as “the big lie,” invoking comparisons with the propaganda of Adolf Hitler.

Although the lawsuit has been widely panned as having zero chance of winning (one commentator has described the complaint as “a rancid garbage fire” of personal grievances), winning at the trial level is clearly not the goal of the ex-commander-in-chief’s lawyers.

The goal is to get the case—or one like it—before the Supreme Court to overturn Sullivan, much as the court jettisoned Roe v. Wade last term in its Dobbs ruling. Two justices—Clarence Thomas and Neil Gorsuch—are already on record calling for Sullivan to be reexamined. In 2019, in a concurring opinion in a case involving Bill Cosby, Thomas characterized Sullivan and the rulings that extended it to public figures as “policy-driven decisions masquerading as constitutional law.”

It would only take three more votes on the court to consign Sullivan to the same fate as Roe. There’s no reason to believe that Justices Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett wouldn’t join Thomas and Gorsuch in such an undertaking.

The court’s arch conservatives are on a crusade to return American law to the late nineteenth century. And they are just beginning, with a push and a shove from a former President.

Unequal justice: Taking Ron DeSantis to Court

To challenge the GOP’s latest cruel stunt, advocates hope to make their civil-rights a case class action suit.

If you thought the GOP’s war on immigrants couldn’t get any more twisted or depraved, think again. A new level of depravity was reached on September 14, when approximately fifty Venezuelan migrants were lured by false promises of employment, housing, and educational opportunities to board two private chartered jets that flew them from San Antonio, Texas, to Martha’s Vineyard, Massachusetts.

Unbeknownst to the migrants, they had been transplanted as part of a premeditated plan hatched by Florida Governor Ron DeSantis. The flights were paid for by Florida taxpayers from a $12 million appropriation approved by the state legislature earlier this year to implement the governor’s policy of relocating “unauthorized aliens” to so-called “sanctuary” jurisdictions.

Instead of being welcomed with open arms and job applications in Martha’s Vineyard, the migrants found themselves abandoned and alone on the tarmac of the resort island’s tiny airport. Fortunately, they were taken in by local church groups later that day and were subsequently provided with temporary housing on a nearby U.S. military base.

Eager to bolster his anti-immigration image and his presidential aspirations, DeSantis has proudly taken responsibility for the stunt and has been basking ever since in the resulting publicity. In a press conference on September 15, he blasted the Biden Administration’s border security policies, declaring, “Every community in America should be sharing in the burdens [of increased immigration]. It shouldn’t all fall on a handful of red states.”

Both DeSantis and the migrants will now be going to court. On September 20, the Boston-based Lawyers for Civil Rights, a non-profit public-interest law firm network formed amid the civil rights era in 1968, filed a federal civil-rights lawsuit to enjoin the governor’s policy and have it declared unconstitutional.

Totaling thirty-five pages, the federal complaint lists three individual Venezuelan migrants as plaintiffs, along with the activist organization Alianza Americas, which provides counseling and outreach services to immigrants. In addition to DeSantis, the complaint names Florida transportation secretary Jared Perdue as a defendant, along with five accomplices who have not yet been identified.

The lawyers are also seeking to have the case certified as a class action brought on behalf of “all immigrants who have been, or will in the future be, induced by Defendants to travel across state lines by fraud and misrepresentation.”

The complaint sets forth twelve separate legal causes of action, including violations of the migrants’ rights under the Fourth and Fourteenth Amendments. In addition, it asserts that DeSantis’ relocation policy runs afoul of Article I of the Constitution, which vests the federal government with the power to regulate immigration, and conflicts with the Supremacy Clause (Article VI, cl.2), which makes the Constitution and federal statutes the “supreme law of the land.”

The underlying facts of the case read like something culled from the script of a bad Hollywood caper—and it begins before the migrants even reached Florida. In early September, according to the complaint, the defendants sent at least two accomplices to “troll” the streets outside a migrant center in San Antonio, “pretending to be good Samaritans offering humanitarian assistance.” One of the accomplices called herself “Perla” and the other introduced himself as “Emanuel.”

To gain the plaintiff’s trust, Perla and Emanuel gave them $10 McDonald’s gift certificates and “made false promises and false representations” that if the migrants were willing to board airplanes to other states, “they would receive employment, housing, educational opportunities, and other like assistance upon their arrival.”

The migrants had recently been released by federal immigration authorities pending further legal proceedings to determine their rights to remain in the United States. Lacking work and suffering from food insecurity, they agreed to the proposal, thinking they were headed for Washington, D.C., Boston, or some other large city where they would find refuge and begin new lives.

The price tag for the flights came to $615,000, or $12,300 per passenger. The Intercept has reported the funds were paid to Vertol Systems Company, Inc., an aviation firm based in Portland, Oregon, with a history of donating to Republican politicians and conservative causes.

Both planes landed briefly in Florida. One then touched down in North Carolina and the other in South Carolina before taking off again. At some point aboard each aircraft, according to the complaint, the migrants were given a “shiny, red folder that included … official-looking materials, including a brochure entitled ‘Massachusetts Refugee Benefits’ and instructions for how to change an address with U.S. Citizenship and Immigration Services.” The complaint alleges “the brochure was manufactured by Defendants,” and “echoed the type of false representation[s]” the migrants had been given orally.

As cruel as it is, DeSantis’s scheme is only a small part of a wider relocation campaign designed to expose what the MAGA right denounces as liberal hypocrisy on immigration. Since April, Texas Governor Gregg Abbott has bused more than 10,000 migrants to New York City, Washington, D.C., Chicago, and other blue-state cities. Arizona Governor Greg Ducey has also gotten in on the act, busing nearly 2,000 migrants out of state.

Cruelty, however, isn’t necessarily illegal. To win their case, Lawyers for Civil Rights must prove that their clients were defrauded and didn’t knowingly consent to be flown to Martha’s Vineyard. DeSantis has insisted the migrants signed consent forms—printed in English and Spanish—before they boarded. Governors Abbott and Ducey also claim their programs are strictly voluntary.

If the attorneys can’t prove their claims in a civil suit, there will be little to no chance that DeSantis, Abbott, or Ducey will face criminal prosecutions, whether for kidnapping, human trafficking, or any other serious offenses, as some prominent Democrats and leftwing legal commentators havesuggested. In a criminal case, the burden is on the government to establish guilt beyond a reasonable doubt. In most civil cases, the standard of proof is a mere preponderance of evidence.

One thing, however, remains certain: In times of social crisis, immigrants are an easy target for political demagogues. Historically, dating back to the Alien and Sedition Acts of 1798, the Chinese Exclusion Act of 1882, the “red scares” of the early-to-mid-20th century, the “Operation Wetback” mass deportations of the Eisenhower era, the anti-immigrant factory raids of the 1970s, the Illegal Immigration Reform and Immigrant Responsibility Act signed into law by President Bill Clinton in 1996, and the revolting family-separation policies of the Trump Administration, all of our major political parties have joined in the game.

Above all else, it is that enduring undercurrent of prejudice and scapegoating that must change—and legal challenges like this will help get us there.

President Joe Biden's 'semi-fascism' remark was no gaffe

In an August 25 speech in Rockville, Md., aimed at drumming up support for Democrats ahead of the midterms, President Biden tarred Donald Trump and the MAGA movement with the dreaded "F" word.

“What we’re seeing now is either the beginning or the death knell of an extreme MAGA philosophy,” Biden declared with uncommon fire and verve after his talk was interrupted by a pro-Trump heckler who accused him of stealing the last election. “It’s not just Trump, it’s the entire philosophy that underpins the [movement] — I’m going to say something — it’s like semi-fascism.”

Republicans reacted to Biden's characterization of their party leader and his hardcore base as fascist with predictable outrage and umbrage. Some, like conservative Washington Post columnist Henry Olsen, called Biden "a human gaffe machine" and dismissed his comments as "fevered bloviation." Others, like Chris Sununu, the Republican governor of New Hampshire, termed Biden's remarks "horribly insulting" and "horribly inappropriate."

For all of those on the right who may have been offended by the president's candor, I have this to say: This was no gaffe on Biden's part. You anointed Trump as your Führer. You must be held accountable for aiding and abetting his rise to power, and for the existential threat he poses to what remains of our democracy.

If there is anything objectionable about Biden's remarks, it is that the president did not go far enough. There is no need for the modifier "semi" when used to describe Trumpian fascism.

As readers of this column know, I have been warning of the dangers posed by Trump and the movement he has spawned for manyyears. To be sure, fascism is an emotionally loaded and often misused term. But fascism is as real today as a political and cultural force, a set of core beliefs and a mode of behavior and governance as it was when Benito Mussolini founded the Italian Fascist Party in 1919 and declared himself dictator six years later.

As the celebrated Marxist playwright Bertolt Brecht wrote in 1935, fascism “is a historic phase of capitalism … the nakedest, most shameless, most oppressive and most treacherous form of capitalism.” Trumpism, along with its international analogs in Brazil, India, the Philippines and Western Europe, neatly accords with Brecht’s description.

Trump and Trumpism similarly embody the 14 common factors of fascism identified by the great Italian writer Umberto Eco in his 1995 essay, Ur Fascism:

  • A cult of traditionalism.
  • A rejection of modernism (cultural, rather than technological).
  • A cult of action for its own sake and a distrust of intellectualism.
  • A framing of disagreement or opposition as treasonous.
  • A fear of difference. … Fascism is racist by definition.
  • An appeal to a frustrated middle class—either due to economic or political pressures from both above and below.
  • An obsession with the plots and machinations of the movement’s identified enemies.
  • A requirement that said enemies be simultaneously seen as omnipotent and weak, conniving and cowardly.
  • A rejection of pacifism. Life is permanent warfare.
  • Contempt for weakness.
  • A cult of heroism.
  • Hypermasculinity.
  • A selective populism, relying on chauvinist definitions of “the people” that it claims to speak for.
  • A heavy usage of Newspeak—impoverished vocabulary, elementary syntax and a resistance to complex and critical reasoning.

Another instructive definition is the one proffered by political scientist Robert Paxton in his classic study “The Anatomy of Fascism” (Harvard University Press, 2004):

“Fascism may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victimhood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion.”

Paxton hesitated to call Trump a fascist when he initially took office, but has changed his views. In a January 2021 Newsweek article, Paxton wrote:

I resisted for a long time applying the fascist label to Donald J. Trump. He did indeed display some telltale signs. In 2016, a newsreel clip of Trump's plane taxiing up to a hangar where cheering supporters awaited reminded me eerily of Adolf Hitler's electoral campaign in Germany in July 1932, the first airborne campaign in history, where the arrival of the Führer's plane electrified the crowd. Once the rally began, with Hitler and Mussolini, Trump mastered the art of back-and-forth exchanges with his enraptured listeners. There was the threat of physical violence ('lock her up!'), sometimes leading to the forceful ejection of hecklers. The Proud Boys stood in convincingly for Hitler's Storm Troopers and Mussolini's squadristi. The MAGA hats even provided a bit of uniform. The 'America First' message and the leader's arrogant swagger fit the fascist model….

Trump's incitement of the invasion of the Capitol...removes my objection to the fascist label. His open encouragement of civic violence to overturn an election crosses a red line. The label now seems not just acceptable but necessary.

According to Paxton, there five stages of fascism:

1. The initial creation of movements;

2. The rooting of the movements in a political system;

3. The acquisition of power;

4. The exercise of power; and

5. Radicalization or entropy, the stage at which movements reach their most extreme heights, or exhaust themselves and fizzle.

We are well beyond the first two phases. We flirted with the third and fourth during Trump’s first term, but our democratic institutions—weak and tattered as they are—were able to resist.

Now, as Trump flirts with another run for the presidency, liberal democracy is again teetering. Both Trump and Quislings like Sen. Lindsey Graham (R-SC) have raised the specter of civil unrest in the wake of the FBI's search of Trump's Mar-a-Lago golf resort.

There is no American exceptionalism when it comes to Trumpian fascism. The menace is upon us. So, kudos to President Biden for speaking out, even if he only got the message half right.

The politics of prosecuting a former president

This is a Roundtable Media panel discussion on the wisdom of prosecuting Donald Trump, featuring Richard Painter, the chief White House ethics lawyer in the George W. Bush administration; Sharon Kyle, co-founder of L.A. Progressive; and Bill Blum, editor and founder of Blum's Law.

What will the findings of the Mar-a-Lago raid mean for Trump's future? A panel of experts joined Roundtable to analyze the incident's legal and political implications. In this segment, they focus on the politics of the raid and the fallout of any subsequent prosecution.

Bill Blum argues that the course of events will be historic in any event, possibly effecting an irreversible rift in American politics.

"Legally, there is a debate among legal scholars and practitioners about whether or not the country can withstand a prosecution," he says. "I think that the greater danger is not prosecuting him."

"I don't know what case will be brought against Donald Trump, if any," he continued. "But I think there's very good reason to investigate him and, if warranted, to charge him. That will have political ramifications, but that's inevitable when any high-profile person is brought to justice."

Sharon Kyle sees the potential prosecution as both a legal and political issue with high stakes for the credibility of the country's legal institutions—and the idea that nobody is above the law.

"If we allow this precedent to go unchecked, we further erode this country's confidence in our so-called democracy and in our justice system," she says.

Watch the video here.

Read the redacted Mar-a-Lago search affidavit and DOJ legal memo here.

"If we allow this precedent to go unchecked, we further erode this country's confidence in our so-called democracy and in our justice system," she says.

Read the redacted Mar-a-Lago search affidavit and DOJ legal memo here.

Watch the video below or at this link.

The FBI's Mar-a-Lago search was Donald Trump's 'Al Capone moment'

If you’re looking for a figure from history to compare Donald Trump to in the wake of the FBI’s search of his Mar-a-Lago resort in Palm Beach, Florida, I have a suggestion that may surprise you: Al Capone.

As I once wrote in connection with Trump’s first impeachment, the similarities between Trump and the renowned mobster are many; both, for example, allegedly ran wide-ranging criminal enterprises, and both were adept at side-stepping legal accountability.

The Feds tried but failed to bring Capone to justice for masterminding the St. Valentine’s Day Massacre of 1929, in which seven of his gangland Chicago rivals were killed, and for the violent extortion and bootlegging empire he built during Prohibition. In the end, Capone was sent to prison in 1931 for the white-collar offense of income tax evasion. After serving his time in custody, Capone was paroled in 1939, suffering from syphilis and early-onset dementia. He died at his villa in Florida eight years later, with what his doctor described as the mentality of a twelve-year-old child.

Like Capone, Trump might still evade liability for the most egregious crimes he may have committed–seditious conspiracy and obstruction of Congress related to his attempt to overturn the results of the 2020 election. But the FBI and the Justice Department appear to have the receipts—literally—to prove him guilty of willfully mishandling, concealing, and perhaps destroying top-secret federal documents.

The search warrant executed at Mar-a-Lago on August 8 has been unsealed, along with the “return” to the warrant, listing the items taken from the property.

The warrant indicates that Federal Magistrate Judge Bruce Reinhart, who sits in West Palm Beach, found there was probable cause for the FBI to search Mar-a-Lago and seize all “physical documents and records, constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of” a section of the Espionage Act and two otherfederal criminal statutes.

The Espionage Act outlaws gathering, transmitting, or losing national defense information. The other statutes prohibit the concealment or removal of federal records, and the destruction, mutilation or alteration of records to obstruct a federal investigation. The statutes prescribe punishments ranging from three to twenty years in prison.

The return to the warrant indicates the FBI seized twenty-eight items of evidence, including twenty-one boxes containing unspecified materials, four sets of “top secret” documents and one set of “classified TS/SCI [top-secret segmented compartmented information] documents,” a reference to information concerning intelligence sources and methods that requires special handling and could involve nuclear science and design files. In addition, the FBI hauled away various photo binders, information about the president of France, and Trump’s signed grant of clemency to Roger Stone.

Trump and his sycophants have floated various defenses against a possible future prosecution. In a post on his Truth Social media platform two days after the search, the former President suggested federal agents may have secretly “planted” evidence against him. The claim has been echoed by at least one of Trump’s attorneys and by right-wing media personalities such as Jesse Waters of Fox News.

No evidence, however, has been made public to support the claim, and subsequent reporting has disclosed that Trump and family members, who were in Trump Tower in New York City at the time of the search, watched the entire operation via a closed-circuit security feed broadcast from Mar-a-Lago.

Trump and his minions have also protested that any documents the FBI found had been declassified before they were removed to Mar-a-Lago while Trump was still in office. Thus, they contend, no crimes were committed.

Although Presidents do have broad authority to declassify information, this defense won’t save Trump, either. Detailed procedures must be followed to implement a declassification directive, the directive must be in writing, and even a President lacks authority to unilaterally declassify nuclear secrets.

Equally problematic for Trump is that the three statutes he is alleged to have violated do not explicitly require that the records in question be classified. All that needs to be shown is that the records belong to the government, not Trump, and in the case of the Espionage Act, that the records pertain to national defense.

Apparently realizing that he’s been trapped by a predicament of his own making, Trump has argued that former-President Obama left the White House with “33 million pages of documents, much of them classified,” including items related to U.S. nuclear programs, and that Obama faced no adverse consequences. However, the National Archives and Records Administration (NARA) quickly issued a sharp rebuke of the Obama comparison. Obama, according to the agency, turned everything over.

As the Justice Department’s probe proceeds, Trump also can be expected to reprise his condemnation of Hillary Clinton, who narrowly avoided prosecution for her use of a private email server that contained classified documents while she was Secretary of State. This defense, too, will prove ineffective.

Clinton was investigated by the FBI. But, as former Director James Comey famously explained in a July 2016 press release, while Clinton was “extremely careless” in her email use, it could not be shown that she acted with criminal intent to willfully mishandle classified information or obstruct justice.

The same cannot be said of Trump. The National Archives first alerted Trump in January 2021 of his obligation to return all official records from his time in office. Trump turned over fifteen boxes of records a year later, but withheld other records. NARA referred the matter to the Justice Department last February, and the Justice Department has been trying ever since to obtain compliance.

Far from cooperating with the department, Trump hedged, delayed, and prevaricated. According to The New York Times, a Trump attorney signed a written statement in June, asserting that all classified material held at Mar-a-Lago had been returned. That assertion was untrue.

In a sign of growing desperation, some of the former President’s staunchest allies, including Republican Senator Lindsey Graham of South Carolina, are demanding to see the affidavit filed in support of the search warrant, upon which Judge Reinhart based his finding of probable cause.

Affidavits are the heart of any application for a search warrant. In compliance with the Fourth Amendment, they are used to detail the facts and circumstances requiring the issuance of a warrant, and to specify the places to be searched and the items to be seized. They are typically sworn to by federal agents and are rarely released while an investigation is in progress in order to protect the identity of federal agents and any informants who have cooperated with the government.

Still, if there was ever a case that merited the early release of a redacted version of an affidavit, the first-ever search and seizure involving a former President of the United States is such a case. And make no mistake: Releasing the affidavit is the last thing Trump and his supporters really should want. They would be well advised to devote all their energy and limited legal talent to suppressing the affidavit along with the evidence seized. If and when it sees the light of day, the affidavit will help to bury Trump.

On August 14, Trump offered yet another defense, demanding that the FBI return the seized material as some of the boxes taken allegedly contained confidential attorney-client communications, and items protected by executive privilege. The former President apparently doesn’t realize that by raising this objection, he has completely undercut his earlier claim that the documents were planted.

We may want to see Trump prosecuted for his role in the January 6 insurrection, but holding him accountable for serious records and reporting violations may be the easiest and quickest road to a felony conviction.

The approach worked for Al Capone nearly a century ago, and may well work for Trump today.

The era of right-wing judicial supremacy

The U.S. Supreme Court has entered a legal fantasy world: advancing a regressive political agenda free from democratic accountability.

In Federalist No. 78, Alexander Hamilton famously predicted that the judicial branch of government would “always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” In retrospect, Hamilton could not have been more wrong.

The U.S. Supreme Court is now dominated by five hardcore ideologues—three of them nominated by former President Donald Trump. In its most recent term, the court made a mockery of Hamilton’s forecast of judicial restraint, crossing a variety of political fault lines on abortion, the Second Amendment, “religious liberty” and the separation of church and state, climate change, civil rights, campaign finance, and voting rights (see sidebar). Far from the neutral institution envisioned by Hamilton, the court has become, according to many commentators, a quasi-legislative body dedicated to advancing a regressive political agenda free from democratic accountability.

Welcome to the new era of right-wing judicial supremacy.

The court’s power grab reached new heights last term with its landmark abortion decision in Dobbs v. Jackson Women’s Health Organization, which concerned a Mississippi statute that bans almost all abortions after fifteen weeks, with no exceptions for rape or incest. Authored by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, Dobbs delivered on the right’s long-festering fever dream of reversing Roe v. Wade and Planned Parenthood v. Casey, the twin pillars of the federal right to abortion.


Stephanie Dalton Cowan

Alito declared that both Roe and Casey were “egregiously wrong from the start” because the word “abortion” doesn’t appear anywhere in the first eight amendments to the Constitution, or anywhere else in our national charter. He also pontificated that abortion cannot be considered an implied or “unenumerated” fundamental right under the Fourteenth Amendment’s due process clause—as Roe and Casey both held—because it is not “deeply rooted in [our] history and tradition.” As a result, he concluded, the court was free to overrule Roe and Casey—decided in 1973 and 1992, respectively—unconstrained by the doctrine of stare decisis, which holds that judges should adhere to precedent.

Instead of respecting precedent, Alito reached deep into the bowels of Anglo-American common law to override it. He cited, among other sources, the work of Henry de Bracton, a thirteenth-century English cleric and judge who condemned abortions as homicide, and, a seventeenth-century English jurist who described abortion as a “great crime” and sentenced at least three women to death for witchcraft. By the time the Fourteenth Amendment was ratified, Alito raged on, “three-quarters of the States [had] made abortion a crime at all stages of pregnancy,” in order to prove his point that abortion rights are not deeply rooted in our history.

The only solution, in Alito’s view, was to strip abortion of its Constitutional protections and return the issue to “the people’s elected representatives.” According to the pro-choice Guttmacher Institute, in response to Dobbs, twenty-six states have already outlawed or severely restricted abortion, or will soon do so.

Alito’s analysis, though the last word in our Constitutional system, is deeply flawed. While controversial, Roe and Casey were decided squarely in line with prior Supreme Court precedents that extended the concept of liberty under the Fourteenth Amendment to other unenumerated privacy interests like the right to interracial marriage (Loving v. Virginia, 1967), the right to obtain contraceptives (Griswold v. Connecticut, 1965), and the right to not be sterilized without consent (Skinner v. Oklahoma, 1942).

Nor is it true, as a matter of historical fact, that abortion at all stages was mostly illegal before Roe. As University of Illinois history professor Leslie J. Reagan explained in her definitive study, When Abortion Was a Crime, “During the eighteenth and early nineteenth centuries, abortion of early pregnancy was legal under common law. Abortions were illegal only after ‘quickening,’ the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy).”

Repudiating Roe and Casey was also unnecessary. The court easily could have upheld the Mississippi statute without scrapping the federal right entirely. This was the position advocated by Chief Justice John Roberts, who penned a concurring opinion, agreeing that the Mississippi law should be upheld, but urging his colleagues to move more cautiously.

A draft of Alito’s opinion was leaked to the press in May, sparking speculation that Roberts has lost control of the panel he heads. Together with the recent revelations that Virginia “Ginni” Thomas, the wife of Justice Thomas, was part of the plot to overturn the 2020 presidential election, and the arrest of a man in early June for attempting to murder Justice Kavanaugh, the leak has created the impression that a once stable institution is now in turmoil as it moves ever rapidly to the right.

Both Dobbs and this term’s transformational ruling on the Second Amendment — New York State Rifle & Pistol Association Inc. v. Bruen— are based on the judicial philosophy known as “originalism.”

Originalism has led the court to enter a legal fantasy world in which the answers to contemporary questions about matters such as votingrights and gerrymandering, unionorganizing, the death penalty, abortion, and gun control are to be found solely in the meaning that the Constitution had for the Founding Fathers. For originalists, this meaning is forever fixed, and can only be altered by Constitutional amendments.

As a tool of judicial decision-making, originalism has been around a long time. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. citizens. Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments, is another originalist landmark.

But as an explicit judicial theory, originalism did not come into vogue until the early 1980s, popularized by Reagan-era Attorney General Ed Meese, the late, failed Supreme Court nominee Robert Bork, and the late Justice Antonin Scalia. Since then, it has been embraced almost universally by legal conservatives.

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In Bruen, the court struck down a New York regulation that required applicants for concealed handgun permits to show a special need for protection. In a 6-3 opinion written by Thomas, and joined by all the court’s Republican appointees, including Roberts, the court held that the regulation—which has been on the books since 1911—was a historic “outlier” on gun control, and as such, violated the Second Amendment right to “bear arms” outside the home.

If anything, Thomas is an even more incompetent historian than Alito. As Fordham University history professor Saul Cornell, one of the foremost authorities on the actual history of the Second Amendment, noted in a scathing critique of Bruen published by SCOTUSBlog:

“The originalist methodology applied by Thomas has one set of rules that apply to interpreting legal texts that support gun rights, and another more demanding set of standards that apply to those that undermine them. The Thomas version of originalism might be summarized as follows: No amount of evidence is enough to support gun control, but no iota of evidence is too little to legitimate gun-rights claims. If one of the goals of originalism was to limit judicial discretion (a value few originalists continue to espouse now that they have a supermajority on the court), then the Thomas rule does the opposite. It provides a license to cherry-pick evidence with reckless abandon if the materials support the ideological agenda of the Federalist Society.”

The big question now is where the court goes from here. In his concurring opinion in Dobbs, Thomas called on the court to reconsider such “substantive due process” privacy-based precedents as the right to contraception (Griswold), the right to engage in same-sex intimacy (Lawrence v. Texas, 2003), and the right to same-sex marriage (Obergefell v. Hodges, 2015). Notably absent from Thomas’s hit list was interracial marriage. Thomas, of course, is married to a white woman.

As hypocritical and cruel as Thomas is, he no longer operates on the fringes of the bench. To the contrary, he has become one of the court’s intellectual leaders.

If there is any kind of afterlife, Alexander Hamilton is no doubt turning in his grave at the Trinity Church cemetery in Lower Manhattan.

Picturing Steve Bannon in an orange jumpsuit and what that could mean for Donald Trump

If you are tired of waiting for Attorney General Merrick Garland to indict Donald Trump for seditious conspiracy, insurrection, obstruction of Congress, or any other crime involving the attempt to overturn the 2020 election, I have some words of consolation: Steve Bannon’s trial for contempt of Congress has begun. If convicted, he will likely go to jail.

Ordinarily, I wouldn’t take pleasure in the prospect of anyone doing time, as our penal institutions are shamelessly overcrowded and do little in the way of rehabilitation or deterrence to lower our outrageously high crime rates. But apart from Trump himself, there might not be any other person moredeserving of a stint in the pokey than Bannon, the loud-mouthed propagandist and podcaster who led Trump’s 2016 political campaign to victory, and subsequently served as the disgraced ex-President’s chief strategist and senior counselor for nearly eight months in 2017.

The facts of the case against Bannon are straightforward and, from a legal perspective, devastating.

On September 23, 2021, the House Select Committee investigating the January 6 attack on the U.S. Capitol issued a subpoena commanding Bannon to produce documents on October 7 and sit for a sworn deposition on October 14. Bannon defied both requests.

On October 20, the committee voted to hold Bannon in contempt. Three days later, the full House, with the support of nine Republicans and every Democrat, passed a contempt resolution against Bannon and forwarded a request for prosecution to the Department of Justice.

On November 12, a federal grand jury returned a two-count indictment against Bannon for disobeying the subpoena. The first count cites him for refusing to testify, and the second for failing to turn over documents.

Contempt of Congress is a misdemeanor, but a very serious one. Conviction carries a mandatory minimum sentence of thirty days and a maximum of one year in jail. There is no possibility of probation, according to a 2011 federal court ruling interpreting the contempt statute.

The committee set forth its reasons for seeking Bannon’s cooperation in a succinct one-page letter that accompanied the subpoena. The letter reads in part:

“The Select Committee has reason to believe that you have information relevant to understanding important activities that led to and informed the events at the Capitol on January 6, 2021. For example, you have been identified as present at the Willard Hotel on January 5, 2021, during an effort to persuade Members of Congress to block the certification of the election the next day, and in relation to other activities on January 6....Moreover, you are quoted as stating, on January 5, 2021 [on Bannon’s ‘War Room’ podcast] that ‘[a]ll hell is going to break loose tomorrow.’ Accordingly, the Select Committee seeks both documents and your deposition testimony regarding these and multiple other matters…”

The subpoena itself lists seventeen categories of records and communications. In addition to the items highlighted in the letter, the list includes all discussions that Bannon had with Trump about the planning, financing, and staging of the events of January 6, and any communications that Bannon had with Trump between November 3, 2020, and January 20, 2021, “concerning efforts to contest the election results or delay or impede the electoral vote.”

The list also includes communications Bannon may have had with any third parties about the insurrection. The subpoena specifically names attorney Boris Epstein, who worked as a strategic adviser on Trump’s 2020 election campaign; Kash Patel, a one-time aide to former GOP Congressman Devin Nunes of California; and Ezra Cohen-Watnick, an intelligence officer who briefly served as the acting Under-Secretary of Defense in 2020.

Initially, Bannon reacted to the subpoena with tough-guy bravado. Following his first court appearance in November, he told a small crowd of supporters and reporters, “This is going to be the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden. Joe Biden ordered Merrick Garland to prosecute me from the White House lawn when he got off Marine One. And . . . we’re going to go on the offense. We’re tired of playing defense. We’re going to go on the offense on this and stand by.”

Bannon might have been emboldened by the fact that contempt of Congress prosecutions are relatively rare, and because his case was assigned to Federal District Court Judge Carl Nichols, a Trump appointee who was narrowly confirmed by the Senate in 2019. In March, Nichols dismissed a felony obstruction charge brought against a Texas man accused of storming the Capitol.

Nichols, however, has been anything but lenient with Bannon. On June 15, Nichols denied Bannon’s motion to dismiss the case, rejecting his claims of executive privilege and his contention that the select committee was established illegally in violation of House rules.

As Bannon’s July 18 trial date approached, he apparently had a “come-to-Jesus moment” typical of many criminal defendants faced with imminent defeat. In an email sent to committee chairman Representative Bennie Thompson, Democrat of South Carolina, by one of his lawyers on July 9, Bannon offered to testify after all. The email also cited a rambling letter written by Trump, waiving claims of executive privilege.

Neither Judge Nichols nor the DOJ was swayed by Bannon’s change of position. On July 11, Nichols denied Bannon’s request to postpone his trial to October.

Nichols also ruled that Bannon will not be permitted to argue executive privilege as a defense at trial, and that he will not be allowed to subpoena House Speaker Nancy Pelosi or other members of the select committee to testify. The rulings left attorney David Schoen—who represented Trump in his second impeachment trial and later joined Bannon’s legal team—so exasperated that he remarked in open court, “What’s the point in going to trial if there are no defenses.”

Unlike seditious conspiracy or obstruction cases, contempt of Congress cases do not involve complex issues of intent. All that the prosecution needs to prove is a willful or deliberate intention not to respond to a Congressional subpoena. Evil motives or corrupt purposes need not be shown.

Bannon’s eleventh-hour offer to testify likely won’t save him, either. As the DOJ noted in a recent court filing, Bannon’s crime was committed and became complete in October, when he dodged the committee’s subpoena.

What this means, bottom line, is that Bannon had best hope he isn’t housed with the general population at the infamous D.C. Central Detention Facility, where he will probably serve his sentence. The same goes for former Trump aide Peter Navarro, who has also been indicted for defying a select committee subpoena. Navarro’s trial is set to begin November 17.

And who knows—a victory in the Bannon and Navarro cases might even encourage Garland to find his spine and prosecute Trump for attempting to overthrow what remains of our damaged democracy.

Julian Assange deserves your support if you believe in a free press

On June 17 2022, the Home Secretary of the United Kingdom approved the U.S. government's request to extradite WikiLeaks founder Julian Assange. Although Assange plans to appeal the decision, the move brings him one step closer to being sent to the U.S., where he faces trial under an 18-count indictment for conspiracy to obtain and disclose national defense information. If convicted, Assange faces a potential maximum penalty of 175 years in prison--in effect, a life sentence.

Assange was initially indicted in May 2018, when the Justice Department was headed by former Attorney General and Trump sycophant Jeff Sessions. The indictment has since been amended ("superseded" in the jargon of the law) twice, first in 2019 and again in 2020.

The indictment alleges that Assange conspired with former Army Intelligence Officer Chelsea Manning and others from 2009 to 2011 to obtain and publish national defense information about the wars in Afghanistan and Iraq. Items supplied by Manning and later published by WikiLeaks allegedly included some 750,000 classified State Department documents and cables as well as several CIA-interrogation videos. Manning also allegedly leaked a video of a 2007 attack staged by U.S. military Apache helicopters in Baghdad that killed two Reuters employees and a dozen other people. (The indictment does not concern WikiLeaks' publication of confidential Democratic Party emails related to the 2016 presidential campaign).

Manning was convicted by court-martial in July 2013 of violations of the Espionage Act of 1917 and other offenses, and was sentenced to serve 35 years in prison. President Obama commuted her sentence in 2017.

From 2012 to 2019, Assange lived in the Ecuadorian embassy in London under a grant of asylum. His asylum status was revoked in April 2019, and he was arrested by British authorities for skipping a bail hearing in 2012 on charges related to a sexual assault case against him Sweden. Although the assault case has since been dropped, Assange remains confined in Belmarsh Prison, a high-security men's institution on the outskirts of London, pending his extradition to the U.S.

Even before Trump and Sessions decided to target Assange, the Obama administration reportedly considered bringing charges against him. Ultimately, however, Obama’s Justice Department opted against moving forward, fearing that prosecuting Assange could place mainstream publishers of leaked information in legal jeopardy.

The Trump administration, animated by the former president's personal vendetta against the press, had no such reservations. In any event, Assange's fate now rests with Attorney General Merrick Garland and the Biden Justice Department. Biden and Garland would be well-advised to drop the extradition request, give Assange credit for time served in British custody, and allow him to go free.

Although Assange is adored by many on the American and international left, who see him as a martyr in the struggle against "deep-state" secrecy and malevolence, you don't have to be an Assange groupie to appreciate the moral, legal and political folly of extraditing him to stage what would amount to a latter-day show-trial.

Personally (full disclosure), I am not--and never have been--an Assange hagiographer. I think he long ago embraced the dark side of right-wing populism. I am, however, a staunch defender of the First Amendment, free speech, and freedom of the press.

Trying Assange on the indictment against him would raise profound First Amendment issues, forcing the Biden administration to draw constitutional distinctions between mainstream publications like the New York Times and the Washington Post and scrappy upstarts like WikiLeaks. Should the Justice Department succeed in taking down Assange, who would be next--The Nation, AlterNet, CounterPunch, Jacobin? The Justice Department should not be in the business of determining which publishers are legitimate and deserving of protection and which are not.

Trying Assange would also violate the public's First Amendment right to obtain important information about the operations of their own government. As Elizabeth Goitein, co-director of the liberty and national security program at the Brennan Center for Justice at New York University School of Law, observed in a 2019 Washington Post op-ed:

The First Amendment encompasses the freedom to disclose information and the freedom to receive it. In essence, the right is shared by the speaker and his audience — which in this case includes Americans.

This doesn't mean that journalists should get a free pass for actively leaking classified information, but the allegations that Assange conspired with Manning, according to many First Amendment experts, amount to little more than the work investigative journalists routinely do to cultivate sources of information.

Finally, trying Assange would be a profound misuse of scarce resources at a time when the Justice Department has been hard-pressed to prosecute the Jan. 6 insurrectionists, and has yet to bring any charges against Trump for inciting the insurrection.

The real threat to American democracy isn't languishing in Belmarsh Prison. That man has already been punished. The real threat to the future of democracy is preparing to run for president again in 2024, and he has yet to face any legal consequences for his actions.

Will the January 6th Committee help save American democracy or be its epitaph?

Ihave a lot of respect for the House Select Committee investigating the January 6 insurrection at the U.S. Capitol. After meeting in closed session for nearly a year, interviewing more than a thousand witnesses and gathering more than 100,000 documents, the nine-member committee will begin a series of televised public hearings on June 9 and release their findings later this summer.

But what, realistically, can we expect to learn that we don’t already know? More importantly, what impact, if any, will the hearings have?

Representative Jamie Raskin, Democrat of Maryland, has set an extremely high bar for the panel. “The hearings will tell a story that will really blow the roof off the House,” Raskin declared in April at an event hosted by Georgetown University’s Center on Faith and Justice in Washington, D.C.

For Raskin, who is one of seven Democrats on the committee and a recognized constitutional scholar, January 6 is the story of an attempt to overthrow U.S. democracy orchestrated by Donald Trump himself.

“No President has ever come close to doing what happened here in terms of trying to organize an inside coup to overthrow an election and bypass the constitutional order,” Raskin said at Georgetown. And no President, he continued, has ever used “a violent insurrection made up of domestic violent extremist groups, white nationalist and racist, fascist groups in order to support the coup.”

As much as I admire Raskin and consider him a person of measured judgment, it might not matter in the end whether the committee’s hearings blow the roof off or—to invoke a dark metaphor from earlier this century—produce “shock and awe.” The sad truth is that our democracy is so damaged it might be beyond repair.

According to the latest annual report published by Freedom House, a non-profit think tank based in Washington, D.C., the United States has fallen to a new low in global rankings in terms of political rights and civil liberties, dropping from an aggregate score of 94 a decade ago to 83 today. The new score places the United States alongside countries like Panama, Romania, and Croatia, and behind Argentina and Mongolia, both of which earned scores of 84. The United Kingdom, in contrast, received a score of 93, and Canada a 98. Sweden, Finland, and Norway topped the list with perfect tallies of 100.

And while a boatload of blame for the decline in U.S. democracy can be attributed to Trump and his incitement of the insurrection, our political rot runs far deeper than the January 6 committee can ever probe or remedy.

According to another Freedom House study, written last year by Sarah Repucci, the organization’s vice president for research and analysis, this trend ia the result of a decade of decline.

“The deterioration was initially marked by harmful new restrictions on voting, legislative gridlock that has made it nearly impossible for the country to address serious public policy challenges, and the growing political influence of well-funded special interest groups,” Repucci maintains. “The downward trend accelerated considerably over the last four years, as the Trump Administration trampled institutional and normative checks on its authority.”

Repucci identifies “three enduring problems that play an outsized role in undermining the health of the American political system: unequal treatment for people of color, the improper influence of money in politics, and partisan polarization and extremism.”

All of these, she argues, are aggravated by the “realities of wealth distribution in the United States [that] determine who can make … sizable [political] donations, and thus gain special access, to government representatives. Income inequality has deepened without interruption since 1980; by one count, in 2019 the wealthiest 10 percent of Americans controlled roughly 84 percent of the assets traded on Wall Street. Black families’ median and average wealth was less than 15 percent that of White families in 2019, while Hispanic families’ wealth was less than 20 percent that of White families. There is also a wealth gap between ordinary citizens and those who represent them.”

Remedying the ills of democracy that Trump exploited will require not only that he and his enablers be held accountable, but a far-reaching transformation of our basic social and economic institutions—a prospect that seems increasingly remote as the midterm elections approach and a possible Republican takeover of Congress looms.

This does not mean, of course, that the January 6 committee’s hearings won’t be worth watching.

In all, according to a draft schedule obtained by The Guardian, the committee is expected to hold six hearings. Both the opening session on June 9 and the final meeting on June 23 will air on national television and radio stations during prime time. The others will be held during daytime hours on June 13, 15, 16, and 21.

A select committee member will lead each hearing, assisted by the panel’s attorneys. Witnesses will be called, videos will be shown, and text messages will be displayed in an effort to present a detailed multi-media narrative of Trump’s scheme to overthrow U.S. democracy, stretching over a sixty-five-day period from the time Trump falsely declared that he won the 2020 election until the insurrection of January 6.

In addition to the physical assault on the Capitol, the committee is expected to cover the Trump White House’s efforts to coordinate the illegal plan to send fake electors to Congress, the plot to seize voting machines, and the unlawful plan to delay the certification of Joe Biden’s win. The Guardian also reports that the panel likely will delve into the origins of the “Stop the Steal movement” and the Trump campaign’s connections to violent groups like the Oath Keepers and the Proud Boys.

Once the hearings are completed, the committee will prepare a report summarizing its findings, recommend legislation to prevent future insurrections, and make criminal referrals to the Department of Justice. There is speculation the committee will recommend that Trump be prosecuted for obstruction of Congress and conspiracy to defraud the United States for his role in the plot to overturn the 2020 election, but that has yet to be confirmed.

To date, the committee has made four contempt referrals, and the Department of Justice has responded with indictments of former Trump advisers Steve Bannon and Peter Navarro while declining to charge both Mark Meadows and Dan Scavino.

I have no doubt that the committee’s report will be well-crafted and illuminating. What I fear, however, is that it will read more as an epitaph for our democracy than a roadmap toward reckoning and renewal.

The Supreme Court has blood on its hands

The court is about to take Second Amendment fundamentalism to a new and even more dangerous level.

If you're looking for someone or something to blame for the mass shootings that have left our schools, streets and communities soaked in blood, don't just point your finger at the deranged punks who pull the triggers, or the NRA and their lackeys in the Republican Party. Save at least some of your ire for the Supreme Court.

In 2008, the Supreme Court sold its soul to the gun lobby. In a 5-4 majority opinion written by the late Justice Antonin Scalia in District of Columbia v. Heller, the court held for the first time that the Second Amendment protects an individual right to own firearms.

Prior to Heller, the great weight of academic scholarship as well as the court’s 1939 decision in United States v. Miller had construed the Second Amendment, in keeping with the actual debates of the Constitutional Convention, as protecting gun ownership only in connection with service in long-since antiquated state militias.

In 2010, the court again genuflected to the gun lobby. In another 5-4 opinion in McDonald v. Chicago, this time written by Justice Samuel Alito, the court extended Heller, holding that the individual right to keep and bear arms is “incorporated” by the Fourteenth Amendment’s Due Process Clause and is therefore applicable to the states and local governments.

The Second Amendment, as interpreted by Scalia and Alito, thus became the law of the land. The amendment has since been elevated in right-wing circles to the status of holy writ.

Both Heller and McDonald were based on the implausible and perverse judicial philosophy known as "originalism."

Originalism has led the court to enter a legal fantasy world in which the answers to contemporary questions about such matters as votingrights and gerrymandering, unionorganizing, the death penalty✎ EditSign, abortion and gun control are to be found solely in the meaning that the Constitution had for the Founding Fathers in the late 18th Century. For originalists, the meaning of the Constitution is forever fixed, and can only be altered by constitutional amendments.

As a tool of judicial decision-making, originalism has been around a long time. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. Citizens. Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the 13th, 14th and 15th Amendments, is another originalist landmark.

But as an explicit judicial theory, originalism came into its own in the early 1980s. Initially, as popularized by Reagan-era Attorney General Ed Meese and the late failed-Supreme Court nominee Robert Bork, the doctrine asserted that the most important terms and provisions that appear in the Constitution and the Bill of Rights should be understood according to the “original intent” of the Founding Fathers, rather than as broad concepts that acquire depth, content and more complete meaning over time in response to changing social conditions.

When critics noted that the framers of the Constitution were a diverse group and that their actual intentions were varied and often ambiguous, proponents of the doctrine refined their approach. The current version—call it “new originalism”— focuses on the “original public meaning” of Constitutional provisions, which, they contend, can be ascertained from the recorded debates of the founding era and from such sources as late eighteenth-century dictionaries.

All originalists—whether of the old or new iteration—believe that their approach limits the subjectivity of judges and acts as a restraint on judicial activism.

In fact, originalism does nothing of the sort. As Fordham University history professor Saul Cornell, one of the foremost authorities on the history of the Second Amendment, noted in a scathing critique published in 2011 in Dissent magazine:

“[I]f one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”

The actual history of the Second Amendment is quite different from the fantasy versions advanced by Scalia and Alito. As the late Justice John Paul Stevens, joined by three of his colleagues, wrote for the minority in Heller:

“The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”

Although Heller and McDonald were the products of extreme rightwing judicial activism, they were technically limited in scope, as they dealt with the right to keep guns in the home. Ever since those cases were decided, however, the gun lobby has worked to bring a new test case to the Supreme Court to extend the right to bear arms beyond the home.

The lobby has finally found its vehicle in a new case--New York State Pistol Association v. Bruen-- that will be decided by the end of June, when the court completes its current term.

Bruen was brought by two individuals and the state affiliate of the National Rifle Association to overturn a New York law that places limits on the issuance of concealed weapons permits to carry guns outside the home. Under New York’s regulatory scheme, people seeking such permits are required to demonstrate a special need for protection — “proper cause” in the words of the statute—to qualify. The NRA contends the law is unconstitutional.

After losing in the lower courts, the Bruen plaintiffs appealed to the Supreme Court, where they are likely to prevail. With the addition of three Trump appointees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—conservatives now hold a solid 6-3 majority on the bench. No longer constrained by the need for caution and compromise, they are set to dramatically extend gun rights under the Second Amendment.

Originalism was front and center during the oral arguments the court heard in the case last November.

During the arguments, the Justices paid scant attention to the dire consequences of unleashing more guns on the streets and subways of present-day New York City. They instead peppered the attorneys for both sides with questions about the origins under Anglo-American law of the right to carry arms in public places. At several points in the two-hour session, the attorneys were asked to share their thoughts on whether the Statute of Northampton, an act of the English Parliament passed in 1328, banned the carrying of weapons other than by the king’s servants in fairs and markets.

The questioning would have made for an amusing Saturday Night Live or Monty Python skit, but this was no stand-up bit. Commenting on the oral arguments, Professor Cornell told the BBC it was “beyond ironic” that anyone would look to Medieval England for resolution of the case. "It just doesn't make any sense whatsoever to anyone who really understands the complexity of English history. Obviously, that doesn't include many people in the gun rights community or many people sitting on some courts in America."

Should the New York statute be declared unconstitutional, similar measures in California, New Jersey, Delaware, Hawaii, Maryland, Massachusetts, Connecticut, and elsewhere will likely fall, with dire and deadly consequences for public safety. Worse still, depending on the scope of the court's ruling, other gun-control laws on background checks and the sale of assault weapons and high-capacity magazines could become vulnerable to constitutional challenges.

The gun homicide rate in the United States is nearly eight times higher than the rate in Canada, and a whopping 100 times higher than in Britain. This year is shaping up to be particularly horrific. As of May 30, the United States had recorded 17,817 deaths from firearms, counting both suicides and unlawful killings, according to the Washington, D.C.-based Gun Violence Archive. We also had recorded 228 mass shootings (defined as an event involving four or more victims).

In any sane democracy, one might expect the highest court in the land to step in and do something to uphold sensible gun-control regulations when given the opportunity. But in fact, our Supreme Court is poised to do just the opposite. Keep that in mind when the next mass shooting inevitably occurs, perhaps in a neighborhood close to your own.

Was Roe versus Wade doomed from the start?

The leaked Supreme Court memo about the overturning of Roe v. Wade has sent shock waves throughout the United States. The decision, if confirmed, will eliminate the constitutional right to abortion, allowing for states to restrict or ban the practice altogether. The procedure continues to be one of the definitive dividing issues in U.S. politics. A panel of commentators joined Roundtable to discuss the implications of the Supreme Court opinion and the future of abortion access. In this segment, they discuss the landmark decision's legal foundations.

This article originally appeared on Roundtable.

Stacey Lee notes that legal scholars have long questioned the solidity of the legal reasoning behind Roe v. Wade. Protecting federal abortion rights, she explains, would take more than a Supreme Court decision.

"If you want to protect a woman's right to an abortion at the federal level, we need to talk about a clearer constitutional amendment," she says. "Even if the leaked opinion becomes final, it's not anywhere close to the end of this issue. If anything, it makes me concerned that there may be other issues that Americans might have considered well-settled law that might not be anymore."

Bill Blum disputes Justice Alito's complete dismissal of the decision.

"In terms of the soundness of Alito's draft opinion, when he says it's Roe and Casey were egregiously wrong from the start, what that means in judge-speak is that no reasonable, competent lawyer could possibly have upheld Roe on the basis that Roe was decided, and I think that's nonsense," he says.

Nadia Asencio argues that the improvements in contraception since Roe v. Wade significantly impacts its relevance.

"When that all happened, birth control methods were not as effective and accessible as they are today," she says. "Today, in 2022, we are in a completely different world."

Watch the full discussion below:

Roundtable Guests:

Bill Blum, Lawyer & Editor-in-Chief, Blum’s Law

Stacey Lee, professor, Johns Hopkins Carey Business School

Nadia Asencio, Youtuber

Samuel Alito is spearheading the criminalization of abortion

If the draft decision stands, terminating a pregnancy will become illegal in twenty-six states and perhaps the nation as a whole.

Make no mistake: If U.S. Supreme Court Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization becomes final without significant revisions, abortion will once again become a crime in the United States. And it won’t just become a crime in some states. If Republicans regain control of Congress in 2022 and the White House in 2024, there’s a very real possibility that abortion could become a federal offense.

To understand how this could happen, it’s necessary to grasp the sweeping and patently ideological nature of Alito’s draft. The draft overrules both Roe v. Wade and Planned Parenthood v. Casey, the twin pillars of the federal constitutional right to abortion. The opinion doesn’t just chip away at the federal right or uphold Mississippi’s statute banning nearly all abortions after fifteen weeks—it abolishes the federal right entirely and without limitation.

Alito stresses that both the Roe and Casey decisions were “egregiously wrong” from the start because the word “abortion” doesn’t appear anywhere in the first eight amendments to the Constitution, or anywhere else in our national charter. As a result, he writes, abortion cannot be deemed a right explicitly reserved to the people.

Alito also argues that abortion cannot be considered an implied or “unenumerated” right under the Fourteenth Amendment—as Roe and Casey held—because the right is not “deeply rooted in our history and tradition.” To the contrary, he contends, when the Fourteenth Amendment was ratified in 1868, “three-quarters of the States [had] made abortion a crime at all stages in pregnancy.”

Against this backdrop, Alito concludes the court is free to overrule both Roe and Casey—decided in 1973 and 1992, respectively—unconstrained by the doctrine of stare decisis, which holds that courts must adhere to precedent. But not to worry. Alito’s draft assures us that overruling Roe and Casey is a good thing, and will benefit everyone by returning the issue of abortion to “the people’s representatives.”

To drive home the point, Alito likens his draft to Brown v. Board of Education, the landmark case that overturned Plessy v. Ferguson and officially ended segregation in public schools. “Some of our most important constitutional decisions have overruled prior precedents,” he notes, equating his draft to Brown, and Roe and Casey to the dreaded Plessy.

The truth, of course, is the exact opposite. While controversial, Roe and Casey were decided squarely in line with prior Supreme Court precedents that extended the concept of liberty under the Fourteenth Amendment to privacy interests like the right to interracial marriage (Loving v. Virginia, 1967), the right to obtain contraceptives (Griswold v. Connecticut, 1965), and the right to not be sterilized without consent (Skinner v. Oklahoma, 1942).

Nor is it true that abortion at all stages was mostly illegal before Roe. As University of Illinois history professor Leslie J. Reagan explained in her definitive study, When Abortion Was a Crime, “During the eighteenth and early nineteenth centuries, abortion of early pregnancy was legal under common law. Abortions were illegal only after ‘quickening,’ the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy).”

The belief that life starts at conception, one of the primary arguments on the religious right for blanket, no-exception abortion bans, is also relatively new. “At conception and the earliest stage of pregnancy before quickening, no one believed that a human life existed; not even the Catholic Church took this view,” Reagan wrote. “Rather, the popular ethic regarding abortion and common law were grounded in the female experience of their own bodies.”

Alito fails to mention that the impetus to outlaw abortion began only in the 1850s, spurred by the fledgling American Medical Association’s desire to gain control over the practice of medicine and curtail the work of midwives and homeopaths.

The AMA’s crusade, Reagan instructed, was a form of backlash against the rising aspirations of women and thus “antifeminist at its core.”

In a Los Angeles Timesop-ed published on May 4, entitled “The Supreme Court Flunks Abortion History,” Aaron Tang, a law professor at the University of California, Davis, delivered a smackdown of Alito’s scholarship.

“Our nation’s history actually does support a right to abortion for much of early pregnancy,” Tang advised. “The best evidence is that only sixteen of thirty-seven states banned pre-quickening abortions when the Fourteenth Amendment was ratified. In the other twenty-one states, abortion remained perfectly lawful through roughly sixteen weeks of pregnancy.”

So much for fairness and accuracy.

If Alito’s draft becomes final, abortion will likely become illegal in twenty-six states, according to the Guttmacher Institute. These include states that enacted laws before Roe that have never been removed from the books; states with so-called “trigger” laws that will take effect automatically when Roe is overruled; and states with constitutional bans that will be activated and enforced post-Roe.

The new abortion bans will also spark criminal prosecutions. According to an analysis by Forbes, once Roe is jettisoned, performing an abortion will become a felony in more than a dozen states.

While most prosecutions likely will be directed at doctors and clinics, the National Association of Criminal Defense Lawyers (NACDL) warned in a comprehensive report last year that state laws defining “personhood” to include fetuses will “expand the reach of criminal liability” for pregnant people who self-induce miscarriages. Just last week, in response to the leak of Alito’s draft opinion, the Louisiana state legislature advanced a bill that if enacted will classify abortion as homicide.

And there is no reason to believe the GOP and the “right-to-life” movement will stop at the state level. In an amicus curiae (“friend of the court”) brief

submitted in the Dobbs case, Princeton University professor Robert George and University of Adelaide professor John Finn argued that “unborn children” are persons from the moment of conception and that Congress has the power to enact legislation protecting the unborn. Alito’s draft cites Gage and Finn’s brief with approval, albeit in a footnote.

In a May 6 interview with USA Today, Senate minority leader Mitch McConnell gave the game away, saying that a national abortion ban would be on the agenda if the Supreme Court overturns Roe.

“[I]f and when the court makes a final decision, I expect everybody will be more definitive,” McConnell said. “But I don’t think it’s much [of a] secret where Senator Republicans stand on that issue.”

There is already a federal statute that makes the performance of “partial birth abortions” a felony. In 2007, the Supreme Court upheld the statute in Gonzales v. Carhart by a vote of 5-4, with Chief Justice John Roberts, and Justices Clarence Thomas and Alito in the majority.

All it would take for a more comprehensive federal ban to take effect is a Republican-controlled Senate that carves out an exception to the filibuster rule for fetal personhood legislation, and the reelection of Donald Trump or the installation of another ultra-right candidate to sign the legislation into law.

And then there is the domino-effect that overturning Roe will have on other privacy issues. With Roe gone, marriage equality and LGBTQ+ rights will likely be the next to fall. If these federal protections are stripped away, states which still have draconian sodomy laws on the books could begin enforcing them once more. After decades of condemning liberal justices for lacking impartiality and engaging in “judicial activism,” the conservative supermajority dominating the Supreme Court appears more than willing to use judicial power to remake the United States into a white Christian nationalist country.

But the true majority—Americans who support abortion rights and democracy—are not powerless. We have the numbers and the incentives to mobilize in the streets and at the ballot box to overwhelm the radical right and force passage of state and federal legislation in support of civil liberties and civil rights.

It will take time, but if necessary, we can even win legislation to expand the number of Justices on the Supreme Court to bring the court in line with the needs and values of the twenty-first century. We only have to realize our power and commit ourselves to using it.

Why the House January 6th panel should subpoena Donald Trump

The January 6 committee has made it official: After a year of meeting in closed session, interviewing over 900 witnesses and gathering more than 100,000 documents, the committee will hold at least eight public hearings. The action will commence on live TV with the first hearing on June 9.

If all goes as anticipated, the hearings will prove what most of us already believe--that the violence that nearly toppled American democracy was incited by none other than the 45th president of the United States, Donald John Trump, and his inner circle of sycophants, grifters, advisers, aspiring felons and assorted nut-jobs.

"The hearings will tell a story that will really blow the roof off the House," Jamie Raskin, D-Md., said late last month at an event hosted by Georgetown University's Center on Faith and Justice in Washington, D.C.

To Raskin, who is one of seven Democrats on the committee and a recognized constitutional scholar, Jan. 6 is the story of an attempted coup orchestrated by Trump. "No president has ever come close to doing what happened here in terms of trying to organize an inside coup to overthrow an election and bypass the constitutional order," Raskin added at Georgetown. And no president, he continued, has ever used “a violent insurrection made up of domestic violent extremist groups, white nationalist and racist, fascist groups in order to support the coup."

Echoing Raskin, the committee’s chairman, Rep. Bennie Thompson, D-Miss., says the panel will “tell the story about what happened” by way of a multi-media presentation, combining live witness testimony with videos of the attack on the Capitol shot in real-time. According to CNN, the committee has even hired a prominent writer—whose identity has not yet been disclosed—to draft a compelling script to accompany the presentation. Prepare yourselves for a narration delivered by James Earl Jones, Morgan Freeman, Peter Coyote or someone of equal gravitas. Prepare yourselves, in short, not only to be informed, but to be entertained as well.

At the end of the day, however, nothing the committee presents will matter unless the hearings attract millions of eyeballs. Decades ago, Americans were transfixed by the Senate Watergate hearings. Today, sadly and tragically, the public’s interest appears to be waning. As a society, we are both polarized and impaired by short attention spans.

According to an analysis of recent polling published by FiveThirtyEight, Americans are moving on from Jan. 6, even if Congress isn’t. Among the polls cited in the analysis are a Navigator Research survey from April 4 that found 39 percent of registered voters think the Jan. 6 committee is too focused on the past. An earlier poll from the Pew Research Center, also cited by FiveThirtyEight, contained similar findings.

At the same time, several other polls taken this year show that Republicans, by overwhelming majorities, continue to believe the 2020 presidential election was stolen. An even more alarming poll by Hart Research and The New Republic magazine, published on April 14, found that 57% of GOP voters believe the insurrection was “an act of patriotism.”

With metrics like these, it wouldn’t be at all surprising if the Jan. 6 hearings wind up with ratings rivaling those of the Weather Channel. Viewers of MSNBC and CNN will tune in. Viewers of Fox, Newsmax and OAN will tune out.

There is one way, however, for the Jan. 6 committee to seize the moment and avoid becoming an historical footnote—it can subpoena Trump and add him to its witness list.

Trump may be the most loathsome charlatan to ever sit behind the Resolute Desk in the Oval Office, but he is still boffo on the small screen. If Jamie Raskin and his colleagues want to tell the story of Jan. 6 to the largest possible audience, they would be well advised to open and close every hearing with an appeal to Trump to come forward and tell his version of the story. To drive home the point, the committee could set aside a chair reserved exclusively for Trump at the witness table. The chair would remain empty and unoccupied unless and until Trump opted to plop his ample girth upon it.

Now, I’m not naïve. I don’t believe for a second that Trump would obey a subpoena or appear voluntarily. Nonetheless, it would be political malpractice not to call him to testify. And at least some members of the Jan. 6 committee are on record agreeing with me. In October 2021, in an appearance on CBS’ “Face the Nation, ” chairman Thompson said that no one, not even Trump, was “off limits” for the committee. And as recently as April 14, another member, Rep. Zoe Lofgren, D-CA, told National Public Radio that “it would be a mistake” to finish the work of the committee without inviting Trump to take the stand.

Serving a subpoena on Trump would be fully consistent with those past declarations, and undercut any criticism, whether offered by Trump or his enablers, that the committee had lost its nerve and somehow ducked the former president.

Trump has long said that he wants a televised debate about election fraud. He’s boasted that any such event would turn into a “ratings bonanza.” Slapping him with a subpoena would be the committee’s way of calling his bluff and exposing him as a coward when he inevitably backs down.

Subpoenaing Trump would also be a bold move, and just the kind of gesture a dying democracy needs for its revival.

'No single justice is more responsible for this crisis than Clarence Thomas': can SCOTUS be redeemed?

As I have written before, the U.S. Supreme Court is facing a crisis of legitimacy driven by a growing public perception that the court is a political institution dominated by conservative activists masquerading as impartial guardians of the Constitution.

No single justice is more responsible for this crisis than Clarence Thomas. Scandal and controversy have plagued Thomas since he was credibly accused of sexual harassment by law professor Anita Hill during his 1991 Senate confirmation hearing. Since then, he has carved out a well-deserved reputation as the court’s most rightwing jurist. Thomas is also an ardent proponent of “originalism”—the legal philosophy that holds that the Constitution should be understood today as closely as possible to the way it was understood when it was written in the eighteenth century.

In 1993, according to The New York Times, Thomas told two of his law clerks that he planned to serve on the court until 2034, and until then would continue to make the lives of liberals “miserable.”

On January 19 of this year, Thomas attempted to make good on that pledge in the case of Trump v. Thompson. By a margin of 8-1, the court rejected a lawsuit filed by the former President to block the National Archives from releasing White House documents sought by the House Select Committee investigating the January 6 insurrection at the U.S. Capitol. Thomas was alone in his dissent.

Were it not for some dogged sleuthing by investigative journalists Bob Woodward and Robert Costa, Thomas’s dissent might have been forgotten amid the many other conservative votes he has registered during his lengthy career. Writing in The Washington Post on March 24, Woodward and Costa reported that Thomas’s wife, Virginia (who goes by the nickname Ginni), had texted White House Chief of Staff Mark Meadows twenty-nine times between early November 2020 and mid-January 2021, urging Meadows to push to overturn of the results of the presidential election.

The text messages have sparked demands from Democrats and legal commentators that Thomas recuse himself from all future cases related to the insurrection and any other litigation surrounding the 2020 election.

So far, Thomas has not publicly addressed his wife’s texts, nor has he given any indication that he will heed calls to not participate in such matters.

This is by no means the first time Justice Thomas has faced recusal demands as a result of his wife’s aggressive political activism and his own intransigence. In 2011, seventy-four House Democrats signed a letter calling for Thomas to stand aside from any appeals involving the Affordable Care Act in light of Ginni Thomas’s record as a highly paid lobbyist working against national health care reform. He declined.

Thomas also failed to recuse himself from the court’s Muslim travel ban ruling in 2018 (Trump v. Hawaii), even though Ginni Thomas reportedly had been paid $200,000 in 2017 and 2018 by a group supporting the ban.

By the fall of 2020, as the election approached, Ginni Thomas’s insider connections to the bases of conservative power expanded. She became a leader in Groundswell, a coalition of hardliners dedicated to fighting progressivism and keeping Donald Trump in office. Parlaying her resume and her marriage to Clarence Thomas, who Trump once described as his “favorite Justice,” she gained extraordinary access to Meadows and the inner circles of the White House.

Although Ginni Thomas has denied trying to influence her husband’s deliberations, her text exchanges with Meadows raise deeply troubling ethical concerns. Among the messages is one she sent to Meadows on November 24, 2020, disclosing that she had discussed the election issue with “my best friend.” While the texts do not identify the friend, this is a term the couple has routinely used to refer to each other over the years.

Given that backdrop, Clarence Thomas’s participation in the Thompson case was entirely improper and outrageous. A federal statute stipulates that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” A subsection of the same statute requires Justices and judges to disqualify themselves when they know that their spouses have any financial “or other interest that could be substantially affected by the outcome of the proceeding.”

The federal statute is similar to laws in place across the country that apply to state-court judges. Like the federal statute, such laws are designed to avoid not only actual instances of judicial bias but also the appearance of bias.

Even if Thomas didn’t know about his wife’s text messages or her admitted attendance at the Stop the Steal demonstration preceding the January 6 storming of the U.S. Capitol, he certainly knew about her activism in general as well as her devotion to Trump. In the view of NYU Law School Professor Stephen Gillers and other prominent legal ethicists interviewed by The New York Times, Thomas had an affirmative duty to inform himself as to her activities. As Gillers put it, Justice Thomas “cannot close his ears and pretend that he’s ignorant. Conscious avoidance of knowledge is knowledge.”

Unfortunately, there is little, if anything, that can be done to bring Thomas to heel. The Constitution provides him with lifetime tenure. Impeachment, however justified, is a pipedream, given the two-thirds Senate majority needed for conviction. Also out of reach, at least for the foreseeable future, are efforts to expand the size of the court or to impose term limits on the justices.

The Supreme Court stands at the pinnacle of the U.S. legal system. Yet its members are free to ignore the federal recusal statute and, unlike every other federal and state court in the nation, our highest court bewilderingly lacks a binding written code of ethics. There is no way to appeal its decisions.

According to a recent Quinnipiac poll, 52 percent of Americans believe Thomas should step down from all 2020 election cases. As more details about the plot to overturn the election are revealed and more related cases reach the court, that percentage is likely to increase.

Maybe someday Thomas will have his reckoning. Let’s just hope that day arrives before 2034, the year he long ago set for his retirement.

Merrick Garland has more than enough evidence to indict Donald Trump

I know you've heard this before--that accountability is coming for Donald Trump and his cronies for triggering the Jan. 6th insurrection--but this time, something new and different has happened. On March 28, Federal District Court Judge David O. Carter ruled that Trump and former Chapman University law professor John Eastman "more likely than not" committed two felonies in their efforts to overturn the results of the 2020 presidential election: obstruction of an official proceeding of Congress, and conspiracy to defraud the United States.

Carter's ruling runs 44 pages and is meticulously detailed. Among other events, it chronicles Eastman's role in drafting two memos for the Trump campaign that set forth a plan to nullify the Electoral College votes in seven swing states when Congress met in joint session on Jan 6, 2021 to certify Joe Biden's victory. The ruling also summarizes Eastman's meetings with Trump, Vice President Mike Pence and other White House officials to execute the plan, as well as Trump's infamous phone call to Georgia Secretary of State Brad Raffensperger.

Subject to further appeals, the ruling ends a lawsuit Eastman filed to prevent the House Select Committee investigating the insurrection from obtaining 111 emails he had sent or received on his Chapman email account between November 3, 2020 and January 20, 2021. Eastman argued the emails are protected from disclosure under the attorney-client privilege. The committee argued the emails fall within the "crime-fraud exception," which holds that the privilege does not cover communications made with the intent to further or conceal a crime. Carter ordered Eastman to turn over 101 of the emails, finding the crime-fraud exception applied.

Although Carter's decision only affects Eastman directly, it has profound implications for both Trump and Attorney General Merrick Garland, the nation's top law-enforcement officer. In words that surely will get Garland's attention, Carter wrote:

The illegality of the plan [to overturn the election] was obvious. Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated [at the time], 'no Vice President in American history has ever asserted such authority.' Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed. With a plan this 'BOLD,' President Trump knowingly tried to subvert this fundamental principle.

Carter's ruling marks the first time a sitting judge has found that that Trump likely violated federal criminal law. And while the likelihood finding falls well below the reasonable-doubt standard that must be met to secure a criminal conviction, it is more exacting than the probable-cause standard Department of Justice lawyers use to decide when to recommend or commence prosecutions. The probable-cause test is also used by federal grand juries use to decide whether to return indictments.

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Why there are very few legal avenues for holding Vladimir Putin accountable for war crimes

On March 16, the International Court of Justice (ICJ) ordered Russia to “immediately suspend” its invasion of Ukraine. The ruling came on a resounding 13-2 vote, with only the court’s Russian and Chinese judges dissenting.

This story first appeared in 'The Progressive.'

And yet the death and destruction continue. Russia has openly defied the ICJ, and the court has no means to enforce its order. Even if a negotiated settlement is reached in the coming days or weeks, the weaknesses of international humanitarian law have once again been tragically exposed.

Still, this is no time to give up on the rule of law as an alternative to war, whether waged by Russia, the United States, or any other global power. The ICJ should be applauded as a voice of reason and peace on Ukraine; its ceasefire order expresses the conscience of the world.

The International Criminal Court (ICC) has also opened an investigation into the war in Ukraine. Like the ICJ, the ICC is based in The Hague, Netherlands. The two tribunals are separate and independent institutions that serve complementary purposes.

Also known as the “World Court,” the ICJ sits in the Peace Palace, a turreted red-brick edifice constructed in the Neo-Renaissance style in 1913. The court is the principal judicial organ of the United Nations, and is designed to adjudicate disputes between nations. It does not prosecute individuals; that’s the job of the ICC.

Since convening its first trial in 1947, the ICJ has heard some 182 cases. Many involve boundary, aviation, and fisheries disputes, but a few have addressed weighty charges of genocide and human rights abuses in the former Yugoslavia, Iran, and now Ukraine.

Although it usually takes the ICJ about two years to resolve a case, the court has put its response to the invasion of Ukraine on a fast track. The court held a public hearing on March 7 to review Ukraine’s emergency application for a ceasefire and scheduled March 8 to consider Russia’s side of the controversy. Russia submitted written objections to the court’s jurisdiction, but otherwise declined to appear. Undaunted, the court forged ahead, live-streaming the March 7 session on the Internet. The March 8 hearing was canceled.

That the court would rule in Ukraine’s favor was not a foregone conclusion. The court’s jurisdiction is limited by the provisions of the U.N. Charter, and its own governing statute. It can hear contested matters involving countries that have assented to its “compulsory jurisdiction” for all purposes or that have agreed to submit specific disputes to it under the terms of international treaties they have signed.

Currently, only seventy-three countries have accepted the ICJ’s compulsory jurisdiction. They include most of the nations of western and northern Europe, but neither the Russian Federation nor Ukraine is among them. Neither is the United States, which hypocritically withdrew from compulsory jurisdiction in 1985 after it was sued in the ICJ by Nicaragua for fomenting civil war and mining Nicaragua’s harbors.

In its emergency application, Ukraine invoked the ICJ’s jurisdiction under the provisions of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which both it and Russia have signed. The court’s subsequent ceasefire order stressed the risk of irreparable harm to Ukraine and the urgent need to stop the bloodshed. The decision, however, is only provisional; a formal trial on the merits will be set for a later date.

The International Criminal Court, by contrast, has the potential to deliver more immediate real-world consequences for Russian military personnel and possibly for Vladimir Putin himself.

The ICC was founded after a 1998 conference attended by 160 nations in Rome. An agreement known as the Rome Statute, which took effect in July 2002, established the ICC as the first treaty-based international criminal court able to investigate and try individuals—both governmental and non-state actors—accused of genocide, war crimes, and crimes against humanity.

The court, housed in a modern steel-and-glass office building, consists of eighteen judges elected by its Assembly of State Parties. It also employs a full-time independent prosecutor.

The Rome Statute authorizes the court to impose heavy jail sentences, up to life imprisonment, on those found guilty. According to its website, the court has opened thirty cases since its inception, with some cases having more than one suspect. To date, there have been ten convictions.

Some 123 countries have signed the Rome Statute, but both the United States and Russia are scofflaws. The United States signed the statute in 2000 but withdrew from it in 2002 over fears that the court would one day charge U.S. soldiers or officials with international crimes.

Russia withdrew in 2016 after the court issued preliminary findings classifying Russia’s annexation of Crimea and hostilities in the Donbas region as international conflicts warranting further investigation.

The International Criminal Court has been criticized for targeting African human rights violators and overlooking European and U.S. malefactors. But in a historic turnabout, the court opened investigations in 2020 into alleged war crimes committed in Afghanistan and Palestine. The Trump Administration responded by revoking the visas of the court’s lead and assistant prosecutors and freezing their U.S. assets. The Biden Administration lifted these sanctions, but continues to oppose both probes.

The ICC promises to be even more aggressive on Ukraine under the leadership of its new chief prosecutor Karim Khan, a London-based barrister, who took office last year. Khan opened the ICC’s Ukraine investigation on March 2 after receiving requests from thirty-nine state parties to the Rome statute, an unprecedented number. Since then, he has personally visited both Poland and Ukraine to begin the arduous process of gathering evidence of war crimes.

Though Ukraine has never joined the court, it has formally accepted the ICC’s jurisdiction. Russia has not.

With or without Russia’s cooperation or membership in the ICC, the investigation will proceed. Under the Rome Statute, nationals of non-member states can be held responsible for war crimes. Soldiers on the ground, their commanding officers, and those who give the orders at the highest levels are all at risk.

What this means for Putin and his cronies is that, if indicted, they will be subject to arrest if they are apprehended in the territory of a cooperating member state.

What this means for the rest of the world, including the United States, is a reminder that no individual, and no nation, is above the law. The law has a long memory—especially when it comes to war crimes.

The United States should join the ICC to hold Vladimir Putin accountable for war crimes: lawyer

Is there a legal remedy for Russia's brutal invasion of Ukraine?

The answer, sadly, is probably not. International law consists of a constellation of treaties, conventions, customs, rules of commerce and engagement, and high-minded principles. All, however, are dependent on the voluntary cooperation of sovereign nations, especially the great powers. In times of war, the law of the jungle all too often prevails.

In the short run at least when it comes to Ukraine, the jungle has overtaken the rule of law. Yet even as the carnage accelerates, there are some hopeful signs in the legal proceedings currently underway at the world's two most prominent tribunals--the International Court of Justice (ICJ) and the International Criminal Court (ICC), both of which are based in The Hague, Netherlands.

On March 7, the ICJ held a public hearing on the invasion in response to Ukraine's emergency request for the issuance of "provisional measures," the rough equivalent of a preliminary injunction, to stop the invasion. A decision could be rendered in a matter of days. In the meantime, the ICC has opened what promises to be a lengthy investigation into the conflict, focusing on the commission of war crimes, crimes against humanity and allegations of genocide.

I have more than a passing familiarity with both institutions. In 1985, I traveled to the ICJ to report on the case of Nicaragua v. United States. In 2014, I turned my attention to the ICC, conducting a series of interviews with human-rights experts and court personnel, and writing a set of columns on Palestine's request for an investigation of alleged Israeli war crimes.

These experiences have given me a deep appreciation of the strengths and weaknesses of both courts.


Also known as the "World Court," the ICJ sits in the Peace Palace, a regal red-brick Neo-Renaissance mansion that opened its doors in 1913. The court is the principal judicial organ of the United Nations, and is the successor of the Permanent Court of International Justice, which operated under the auspices of the League of Nations from 1920-1945.

Like its predecessor, the ICJ hears disputes between nations. It does not hear cases involving individuals.

Flag of the United Nations

Flag of the United Nations

Wikimedia Commons

Since convening its first disputed matter in 1947, a maritime controversy between the United Kingdom and Albania over the Corfu Channel, the ICJ has heard some 182 cases. Many have involved boundary, aviation and fisheries disputes, but a few have addressed weighty issues such as charges of genocide and human rights abuses in the former Yugoslavia, Iran and elsewhere.

Although every member of the United Nations is also a member of the ICJ, not all contested cases are submitted to the court for resolution. The court's jurisdiction is limited by the provisions of the U.N. Charter. It can hear contested cases involving countries that have assented to its compulsory jurisdiction or have agreed to submit disputes to it under the terms of international treaties that they have signed. The court also can issue advisory opinions on legal issues at the request of the U.N. Security Council.

The court is composed of 15 judges elected to nine-year terms by the U.N. General Assembly and the Security Council. Joan Donoghue, an American lawyer, has served as a judge on the court since 2010. She was elected as its president in 2021.

Currently, 73 countries have accepted the ICJ's compulsory jurisdiction. They include most of the nations of western and northern Europe. The Russian Federation and the U.S. do not recognize the court's compulsory jurisdiction.

The court's jurisdiction on the Ukraine invasion has been invoked under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which both Russia and Ukraine have signed. Ukraine argues not only that the court has jurisdiction to entertain the case under the convention, but also that Russia has used false claims of Ukrainian genocide committed in the eastern Donbas region as a pretext to justify what has now become a full-scale invasion of the entire country.

Ukraine is asking the court to order Russia to immediately suspend its military operations. Judging from the tone and tenor of the March 7 hearing, the ICJ appears poised to find it has jurisdiction, and to issue the requested order. Should the court do so, the case will move to a trial on the merits, at which stage, if Ukraine is again successful, the court could order Russia to make reparations for the catastrophic damage it has inflicted on Ukraine's economic infrastructure and the enormous and mounting loss of innocent life it has caused.

Apart from its advisory opinions, the ICJ's decisions are technically binding on all parties. Enforcement of the court's decisions, however, is left to the Security Council. And since Russia is a member of the council and every council member wields veto powers, Russia is certain to block any remedies from being implemented.

In many respects, the Ukraine case is similar to the application brought by the Sandinista government of Nicaragua against the United States. In 1984, Nicaragua took the U.S. to the ICJ, charging the U.S. with violating international law by arming the Nicaraguan Contras and mining the country's harbors. After the ICJ determined it had jurisdiction to hear the controversy, the Reagan administration withdrew from the court's compulsory jurisdiction and refused to appear for the subsequent trial on the merits, which took place in 1985 in the absence of the U.S. In 1986, the ICJ issued a final ruling in Nicaragua's favor and awarded reparations to the Central American nation--a debt now estimated at $17 billion that the U.S. has yet to pay.

Following the U.S. playbook, Russia notified the ICJ on March 1 that it would boycott the hearing on Ukraine's request for provisional measures. As a result, the court canceled a session originally set for March 8 to consider Russia's side of the case.

In an open letter released in late February, Russia's longtime legal counsel at the ICJ--the renowned French human-rights lawyer Alain Pellet, who I met at the Peace Palace in 1985 during the Nicaragua trial--declared that he could no longer work for his former client. Pellet wrote: "...enough is enough...lawyers can defend more or less questionable causes. But it has become impossible to represent in forums dedicated to the application of the law a country that so cynically despises it."

Alain Pellet, French Human-Rights Lawyer

Alain Pellet, French Human-Rights Lawyer Wikimedia, Creative Commons

Although Russia undoubtedly will ignore the court's ultimate findings, it will do so at its long-term peril. A decision against Russia will strengthen the sanction regime imposed by the international community and will isolate Russia from the modern world for decades to come.


The ICC was founded after a 1998 conference attended by 160 nations in Rome. The conference produced an agreement known as the Rome Statute which took effect in July 2002, establishing the ICC as the first treaty-based international criminal court for the purpose of investigating and trying individuals — both governmental and non-state actors — accused of genocide, war crimes, crimes against humanity and crimes of aggression, as defined by the Geneva Conventions, the Rome Statute and other sources of international law. The Rome Statute authorizes the court to impose heavy jail sentences, up to life imprisonment, on those convicted.

Although the ICC is affiliated with the United Nations, it is legally independent. An agreement reached in 2004 permits the U.N. Security Council to refer cases directly to the ICC. The court is also authorized to conduct investigations at the behest of member states, or at the request of a non-member state that willingly submits to the court's jurisdiction.

The International Criminal Court

The International Criminal Court Wikimedia

Today, 123 nations are parties to the Rome Statute, acceding to the ICC’s jurisdiction. Membership in the court and cooperation with the enforcement of its judgments are voluntary. The tribunal has no police or arrest powers of its own.

The United States signed the Rome Statute in 2000 but withdrew from it in 2002 over fears that the court would one day charge American soldiers or officials with international crimes. Russia withdrew in 2016 after the court issued preliminary findings that classified Russia's takeover of Crimea and hostilities in the Donbas region as international conflicts warranting further investigation.

The ICC consists of 18 judges elected by its Assembly of State Parties. It also employs a full-time independent prosecutor. The current chief prosecutor is Karim Khan, a London-based barrister who took office last year.

On March 2, Khan announced he was opening an investigation into the war in Ukraine after receiving requests from 39 state parties to the Rome statute, an unprecedented number. Khan pledged to “immediately proceed” to probe alleged war crimes perpetrated in Ukraine by any and all individuals dating back to 2013 when protests erupted against a Russia-friendly government in Kyiv.

According to its website, the court has opened 30 cases since its inception, with some cases having more than one suspect. ICC judges have issued 35 arrest warrants, including those for the apprehension of Ugandan rebel leader Joseph Kony, and the deceased Libyan strongman Muammar Gaddafi. As a result of cooperation from member states, 17 people have been detained in the ICC's detention center in a Dutch prison complex on the outskirts of The Hague. Thirteen suspects remain at large.

Trials afford defendants due process protections similar to those in the U.S. No trials are conducted in absentia. To date, the court has returned ten convictions and four acquittals. Upon conviction, defendants are transferred to prisons located in member states outside the Netherlands.

The ICC has been criticized for targeting African human-rights violators and overlooking European and American malefactors. But in an important turnabout, the court opened investigations in 2020 into alleged war crimes committed in Afghanistan, Israel, and Palestine. The Trump administration responded by revoking the visas of the court's lead and assistant prosecutors and freezing their U.S. assets. The Biden administration lifted the sanctions but continues to oppose both probes.

Khan appears determined to be more aggressive than his predecessors. As the Ukraine investigation gets underway, he has appealed not only to legal experts for relevant evidence to determine if indictments should be issued but to members of the general public. Anyone with information can email his office via

The fact that Russia is not a member of the ICC will not insulate either its soldiers, their commanding officers, or Vladimir Putin himself from charges of war crimes, crimes against humanity, or genocide. Under the terms of the Rome Statute, aiders and abettors--including those who provide the means for the commission of crimes--can be held as accountable as direct perpetrators. [The crime of aggression is off the table, however, as the Rome Statute limits prosecutions for that offense to nationals of member states].

What this means for Putin and his cronies is that once indicted, they will remain subject to arrest if apprehended in the territory of a cooperating member state. We may never see Putin in the dock, but given the growing and overwhelming worldwide condemnation of the war, it's a possibility that can no longer be dismissed.

As Americans, we can do our part for peace by demanding an end to the war. We can also insist that our government accept the compulsory jurisdiction of the ICJ, and sign the Rome Statute to become a member of the ICC. As moral beings who value human life, we have a duty to do no less.


Panel debates whether American imperialism can save Ukraine

Lawyer and journalist Bill Blum on Monday joined a discussion with political analyst Eric Draitser and surgeon and former intelligence officer Dr. Keith Rose about the conflict in Ukraine and what it means for the world.

The debate focused on a few key issues; namely, how the United States and its allies should check Russian President Vladimir Putin's aggression to prevent a catastrophic loss of life in Ukraine. The panelists also contemplated the impact that Putin's invasion of Ukraine will have on future geopolitics.

One crucial takeaway, however, is the notable differences between American and Russian imperialism.

"The U.S. has been the single global dominant imperial power for more than a generation, since the end of the Cold War, and that is now changing," Draitser said. "What Putin has done is revealed that the world is unfortunately extremely fragmented, and that what comes after unipolar global imperialism is more and deadlier imperialisms."

While Blum agrees that the United States can be characterized as an imperial power, he argues that it's important to consider how it can intervene on behalf of the Ukrainian people.

"America is an imperial power. That doesn't mean that U.S. society is the same as Russia," Blum said. "Russia is a dictatorship. There's no freedom of the press in Russia. There's no freedom of assembly in Russia. Russia is a homophobic state. It's a kleptocratic state, but that doesn't detract from the fact that the U.S. is an imperial power."

The most urgent issue, Blum insists, is ending the war.

"The question we have to ask ourselves is not only what are we against, but what are we for," Blum said.

Watch below:

Debunking Vladimir Putin's antisemitic Ukraine propaganda

The Russian invasion of Ukraine has come to my Facebook page. You may have experienced something similar if you haven’t already abandoned the “metaverse.”

This article first appeared on Roundtable.

Broadly speaking, my Facebook visitors have come in three varieties: Trolls (some perhaps afflicted with mental illness) out to cause trouble and spread disinformation about the conflict; leftists who cite U.S. foreign policy as the primary cause of the war; and liberals and progressives who blame Russian President Vladimir Putin for the carnage without attributing fault to the U.S.

These cross-currents converged after I posted a Feb. 23 tweet by Yale University philosophy professor Jason Stanley, addressing the claim that Ukraine is a Nazi-run state.

Stanley is a leading expert on fascism, and the author of the highly acclaimed study, How Fascism Works. His tweet stated:

“The President of Ukraine is Jewish, and has many family members who died in the Holocaust. Putin's claim that he is invading to ‘de-Nazify Ukraine’ should shock the world.”

Stanley’s observation went viral, eliciting over 44,000 Twitter “likes.” It also sparked a minor shockwave on my Facebook page.

I responded to the traffic uptick, as is my custom, by blocking anyone—or any bot (you never meta know)—suspected of trolling or in need of therapy.

I engaged with other posters, however, and was heartened to find intelligent life on both sides of the divide. Without identifying anyone by name, there were some in the anti-U.S. camp who pointed out Ukraine’s long history of anti-Semitism. Others noted that Ukraine’s present-day national guard includes a virulent neo-Nazi unit known as the Azov Battalion. Still others condemned the provocative decision to expand NATO to the borders of Russia after the collapse of the Soviet Union.

On the opposite flank were posters who to varying degrees echoed the thinking of Professor Stanley, who followed up his earlier tweet with a column for the Guardian on Feb. 26, writing:

“Vladimir Putin is himself a fascist autocrat, one who imprisons democratic opposition leaders and critics. He is the acknowledged leader of the global far right, which looks increasingly like a global fascist movement.

“Ukraine does have a far-right movement, and its armed defenders include the Azov battalion, a far-right nationalist militia group. But no democratic country is free of far-right nationalist groups, including the United States. In the 2019 election, the Ukrainian far right was humiliated, receiving only 2% of the vote. This is far less support than far-right parties receive across western Europe, including inarguably democratic countries such as France and Germany.”

Harnessing my experience as a judge and training as a mediator, I attempted to bridge the gap, posting:

“To try -- and I use that word because it is very difficult-- to understand what is happening in Uk [Ukraine], you have to embrace some seemingly contradictory ideas. Yes, there are anti-Semites in Uk (Azov). But Zelensky is not a Nazi, either with a small "n" or a capital one. Yes, NATO has encircled Russia and that was a tragic error (in my view), but Putin is not Uncle Joe [Stalin] defending the world against fascism.”

Without getting overly academic, what I meant is that to understand the war in Ukraine in a way that can lead to a peaceful resolution and a better world, we need to sharpen our abilities to think critically. We need to adopt what researchers call the “paradox mindset” and engage in “integrative thinking” rather than all-or-nothing rigidity.

The most revolutionary thinkers actively consider “multiple opposites or antitheses simultaneously,” Loizos Heracleous and David Robson wrote in an article published by the BBC in Nov. 2020, citing the pioneering work of psychiatrist Albert Rothenberg, who has spent decades examining the creative process.

“Einstein,” Heracleous and Robson explained, “contemplated how an object could be both at rest and moving depending on the position of the observer, a consideration that ultimately led to his relativity theory. Danish physicist Niels Bohr tried to reconcile the ways that energy acted like both waves and particles: states that existed simultaneously, even though they could not be observed together. This train of thought ultimately inspired a startling new understanding of quantum mechanics.”

Can we arrive at a new synthesis on Ukraine and change our thinking to repudiate both American imperialism and Putin-style fascism? Sadly, the jury, as they say in my profession, is still very much out on the question.

In the meantime, we should at a minimum be able to agree that the bloodbath must end. As I put it in another comment on my thread:

“The building is on fire. We can talk about the corrupt builder[s] and the building code inspectors who didn’t do their jobs when it’s out. Translation: the Russian invasion is an atrocity and has to be stopped now.”

How the Supreme Court is  turning back the clock on election law — and advancing voter suppression

If I asked you to name the most important opinion handed down by the U.S. Supreme Court during Earl Warren’s sixteen-year tenure (1953-69) as Chief Justice, you’d probably cite Brown v. Board of Education, the landmark, unanimous ruling that ended legal segregation in public schools.

This article originally appeared on the Progressive.

Warren himself was asked this exact question in a televised interview with the McClatchy News Service that aired on June 25, 1969, two days after he formally stepped down from the bench. Without understating the importance of Brown, he singled out Baker v. Carr, the 1962 decision on reapportionment, redistricting, and gerrymandering that established the doctrine of “one person, one vote.”

As Warren explained:

“I think the reapportionment not only of state legislatures but of representative government in this country is perhaps the most important issue we’ve had before the Supreme Court.

“If everyone in this country has an opportunity to participate in his government on equal terms with everyone else, and can share in electing representatives who will be truly representative of the entire community and not some special interest, then most of the problems that we are confronted with would be solved through the political process rather than through the courts.”

Four years after deciding Baker, the court issued another pivotal decision in South Carolina v. Katzenbach, upholding the constitutionality of the Voting Rights Act of 1965.

Flash forward to the present day, and the Supreme Court has shifted on its axis. Now dominated by conservatives, including three hard-right members nominated by President Donald Trump, the court appears determined to turn back the clock on election law to the early 1950s and undo the last vestiges of Warren’s voting rights legacy.

The court’s latest act of electoral sabotage came in a 5-4 ruling, issued on February 7, that reinstated a new Alabama Congressional map created after the 2020 census for the state’s seven seats in the House of Representatives. Chief Justice John Roberts, the architect of much of the court’s recent voting rights carnage, was so disturbed by the majority’s decision that he joined the court’s three Democratic appointees in dissent.

In January, a three-judge federal district court panel overturned the Alabama map as an illegal “racial gerrymander” in violation of Section 2 of the Voting Rights Act. The section prohibits voting practices and procedures that discriminate on the basis of race, color, or membership in a minority language group. Private parties as well as the federal government can file civil lawsuits to enforce the act.

The new map was challenged by the Alabama chapter of the NAACP and other plaintiffs, who noted that while Black people comprise 27 percent of the state’s residents, the map concentrated one-third of Black residents into a single voting district. The net effect was to create one Black majority voting district while dispersing the rest of the Black population across the state.

In support of their suit, the plaintiffs cited a series of Supreme Court decisions on the Voting Rights Act from the 1980s and 1990s that struck down race-based gerrymanders which weaken the power of minority voters, either by “packing” minority populations into a few districts or by spreading them throughout the state, a practice called “cracking.”

The district court concluded that Alabama’s map, if fairly drawn, would either provide two districts with Black voting majorities or multiple districts “in which Black voters [would] otherwise have an opportunity to elect a representative of their choice.” The judges ordered the state to redraw the map.

At the state of Alabama’s request, the Supreme Court intervened with an emergency “shadow docket” ruling, issuing a stay of the district court’s decision without holding oral arguments or receiving a full briefing. As several academics and journalists have noted, the court’s shadow docket grew exponentially during the Trump presidency, and the trend is continuing.

As with many shadow docket matters, the court’s stay order on the Alabama map is technically temporary in nature, as the case will be taken up for full formal review next term. In the meantime, however, the map will remain in place, giving the state’s Republicans an undeserved advantage in the midterms.

While the court’s final ruling on the Alabama case remains pending, there is little reason to believe it will ultimately invalidate the rigged map. Although Chief Justice Roberts joined the court’s liberals at the shadow docket stage in opposing a stay, he could easily change course when the case is decided on the merits.

Roberts’s overall record on voting rights has been abysmal. He was the author of the 5-4 majority opinion in Shelby County v. Holder (2013), which gutted the Voting Rights Act’s “pre-clearance” provisions that required state and local jurisdictions with histories of discrimination to obtain advance federal approval before implementing changes in voting procedures.

Since then, voter suppression techniques in GOP-controlled states have proliferated at a rate not seen since the Jim Crow era.

In another crippling blow, Roberts wrote the majority opinion in Rucho v. Common Cause (2019), which held that partisan gerrymandering, no matter how extreme, presents a nonjusticiable “political question” beyond the jurisdiction of federal judges. He also joined his Republican soulmates last year in a pair of 6-3 decisions from Arizona that further weakened Section 2 of the Voting Rights Act.

Looking to Roberts to act as a savior on voting rights is a fool’s errand. As Linda Greenhouse wrote in a New York Times guest column on February 9, in reference to the Alabama map ruling, “You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.”

To appreciate just how far our highest court has fallen, you only need to replay Warren’s McClatchy interview. If Warren were alive today, he would likely be a vocal advocate for court reform. But, alas, his voting rights legacy is looking more and more like a mournful epitaph.

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