The Progressive

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 many commentators 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.

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 factual errors, 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 have suggested. 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.

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 other federal 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 voting rights and gerrymandering, union organizing, 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 more deserving 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.

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.

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 Times op-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.

'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.

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.

This is still Trump’s Supreme Court

The Supreme Court’s conservative majority has developed a love/hate relationship with Donald Trump. Simply put, the majority loves the disgraced ex-President’s social and political agenda, but hates his inflated claims of executive authority and personal grievance.

The just-announced retirement of Justice Stephen Breyer will do nothing to alter this dynamic or change the court’s balance of power, no matter who succeeds Breyer.

Trump’s most recent personal setback before the high court came in the case of Trump v. Thompson, decided on January 19. By an 8-1 margin, with only Clarence Thomas dissenting, the court rejected Trump’s request to block the release of a trove of White House documents sought by the House select committee investigating the January 6 insurrection at the U.S. Capitol.

The committee, chaired by Representative Bennie Thompson, Democrat of Massachusetts, requested the documents from the National Archives (where they have been stored pursuant to the Presidential Records Act following Trump’s departure from the Oval Office). The documents concern Trump’s actions on January 6 and his possible role in the insurrection. They include such items as memos, emails, diaries, schedules, and visitor and call logs—all of which Trump has sought to keep secret.

Conservative lawyer George Conway, writing in The Washington Post, calls the court’s decision “a brutal and personally stinging loss for Trump. And the arguments his own lawyers advanced may have made the defeat worse.”

Trump’s attorneys argued that even though Trump is no longer President, he retains the right to invoke executive privilege to prevent the disclosure of documents created while he was in office. After losing in the Court of Appeals for the District of Columbia, the lawyers asked the Supreme Court to step in, undeterred by President Joe Biden’s decision as the incumbent President to waive the privilege for most of the documents at issue.

The Supreme Court rebuffed Trump’s claims without hearing oral arguments in an unsigned one-paragraph per curiam (“by the court”) order. Trump’s contentions were so weak that the court apparently saw no need for an extended discussion. Instead, it simply endorsed the conclusion of the Court of Appeals, which had held that Trump’s claims “would have failed even if he were the incumbent,” and that “his status as a former President necessarily made no difference to the court’s decision.”

Within hours of the Supreme Court’s ruling, the National Archives began turning over documents to the select committee. Although the committee has not yet released the files, Politico reported that they include a draft executive order that, if issued, would have directed the Defense Department to seize voting machines across the country because of “international and foreign interference in the November 3, 2020, election.” The order also called for the appointment of a special counsel to “oversee the operation.”

The Thompson ruling wasn’t the first time Trump’s hubris resulted in embarrassment before the nation’s highest tribunal. In 2020, he lost his claims of “absolute immunity” from state criminal investigations in Trump v. Vance. And last year, the court turned away the last of the Trump campaign’s challenges to the results of the presidential election.

Going forward, Thompson will make it much more difficult for anyone to obstruct the committee’s work with meritless defenses of executive privilege. Steve Bannon, Mark Meadows, Ivanka Trump, and their confederates and cohorts had best take heed.

But Trump’s loss by no means signals a general turnaround in the direction of the Supreme Court. The six conservatives who now control the court remain committed to the legal philosophy of “originalism,” as popularized by the late Justice Antonin Scalia. It asserts that the answers to contemporary questions about such matters as voting rights, gerrymandering, union organizing, the death penalty, and campaign finance are to be found solely in the supposed “original” meaning Founding Fathers intended when writing the Constitution in the late eighteenth century.

This court session promises more of the same. If anything, the court is likely to veer even more sharply to the right. Thus far, the panel has refused to block Texas’s draconian new abortion law, and has invalidated the Biden Administration’s COVID-19 “vaccination-or-testing” requirement for the employees of large corporations.

Before the court’s current term concludes, the conservative majority will hand down opinions that likely will overturn or gut Roe v. Wade (Dobbs v. Jackson Women’s Health Organization), weaken local and state gun-control measures (New York State Rifle & Pistol Association, Inc. v. Bruen), potentially cripple the Environmental Protection Act (West Virginia v. EPA), and do away with what remains of race-based affirmative action programs at colleges and universities (Students for Fair Admissions v. Harvard University and Students for Fair Admissions v. University of North Carolina).

Trump lost in Thompson, as he did in Vance and in the election conspiracy challenges filed on his behalf. But it is not because the Supreme Court has suddenly gone squishy liberal, but because his positions were so extreme no rational court could accept them.

Trump ran for office on the promise of remaking the Supreme Court and the lower federal bench. Sadly, he made good on that promise, placing three young and doctrinaire judicial activists on the court. Even allowing for the occasional blip like Thompson, the Supreme Court has delivered for Trump and will continue to do so—to poach one of his own catch phrases—“like never before.”

The Supreme Court has been captured by the GOP — and it’s moving right at a dangerous pace

This story was first published at The Progressive.

Since John Roberts’s appointment as Chief Justice in 2005, the U.S. Supreme Court has handed down a spate of transformational ultra-right decisions on a dizzying array of subjects, including voting rights, gerrymandering, union organizing, the death penalty, qualified immunity for police, gun control, campaign finance, and most recently, abortion.

With their solid 6-3 majority, the court’s conservatives are emboldened to wreak even more Constitutional havoc in the future. They are armed with the power of judicial review, which permits them to overturn popular legislation and prior precedent decisions at will. And with only occasional lapses, they adhere to the doctrinaire legal philosophy of “originalism,” which asserts that the answers to contemporary questions are to be found by guessing what the Constitution’s language meant to its Framers and readers in the late eighteenth century.

Though the Democrats are partly responsible for allowing the court to be taken over by the right, this is not the time for recriminations. Liberals and progressives have little choice but to move forward with efforts to reclaim the court and bring it in line with the values and needs of a multicultural democracy in the twenty-first century.

The most efficient way to counter the current rightwing domination of the court is to expand the number of justices, placing more liberals and moderates on the bench. Even if there is little prospect of this happening any time soon, the idea of court expansion as a political remedy to rein in an unchecked judiciary is nothing new; it’s actually an old idea that has taken on new urgency.

The issue of court expansion is addressed in the 294-page draft final report of the Presidential Commission on the Supreme Court of the United States, which was released on December 7. Established by President Joe Biden in response to the rising public clamor for court reform, the commission consists of thirty-four Constitutional law experts—including both liberals and conservatives.

Unsurprisingly, given the scope of its charge and its composition, the commission failed to make any recommendations on court expansion, or on implementing any other major structural changes to the court. Nonetheless, the report contains a surprisingly readable account of the Supreme Court’s history and offers a useful summary of past efforts to alter the court’s size.

As the report notes, the court’s size isn’t set by the Constitution; it’s set by Congress, pursuant to Article III, section 1 of the Constitution.

The Judiciary Act of 1789 established a six-member court, consisting of one Chief Justice and five Associate Justices. Throughout the nineteenth century, Congress changed the court’s composition six times, expanding or contracting the court, as the report explains, “for both institutional and political reasons.”

In 1801, John Adams and the Federalists, with only weeks left in power, reduced the number of justices to five in response to the election of Thomas Jefferson, a Democratic Republican. The following year, the new Democratic Republican Congress reversed the move and restored the court to six members. In 1807, Congress expanded the panel to seven justices, and in 1837, the number was increased to nine.

Echoing some of today’s controversies, the report devotes considerable attention to the intense conflicts between President Andrew Jackson and Chief Justice John Marshall over the scope of the Supreme Court’s authority. In 1837, two years after Marshall’s death, the court was enlarged to nine justices in one of Jackson’s last acts before leaving office.

All told, during his eight years in office, Jackson appointed six Justices. Foremost among them was Roger Taney, who authored the majority opinion in the infamous Dred Scott case of 1857 that held Americans of African descent could never be citizens. The Dred Scott decision was one of the factors that precipitated the Civil War.

The report also addresses the rapid series of changes to the size of the court that occurred both during and immediately after the Civil War, as the number of Justices grew to ten in 1863, contracted to seven in 1866, and returned to nine in 1869.

The court has remained at nine members ever since, withstanding both President Franklin Delano Roosevelt’s “court-packing” plan of 1937 that was crafted to blunt the court’s initial opposition to the New Deal, and rightwing calls to restrict the court’s power in reaction to the civils rights movement of the 1950s and 1960s.

There is nothing sacrosanct, however, about the number nine.

In a Washington Post op-ed published on December 9, Harvard Law School Professor Laurence H. Tribe and retired federal district court judge Nancy Gertner, both of whom served on the Biden Commission, explained that they once opposed court expansion but came to change their views.

“We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible,” Tribe and Gertner wrote. “We did not come to this conclusion lightly.”

Tribe and Gertner cite three basic reasons for their shift in position:

“[F]irst, the dubious legitimacy of the way some justices [referring to Neil Gorsuch and Amy Coney Barrett] were appointed; second, what Justice Sonia Sotomayor rightly called the ‘stench’ of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering, and the corrupting effects of dark money.”

“Those judicial decisions haven’t been just wrong; they put the court—and, more important, our entire system of government—on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy. Instead of serving as a guardrail against going over that cliff, our Supreme Court has become an all-too-willing accomplice in that disaster.”

In April, the Judiciary Act of 2021 was introduced in both houses of Congress. If enacted, it would expand the court to thirteen justices. The House version of the bill currently has forty-three co-sponsors, and their ranks can only be expected to grow as the court’s conservatives do more damage to what remains of our democracy.

We can do our part to support the legislation by making court expansion a central focus of our wider political discourse as well as a campaign issue in the 2022 midterms and again in 2024—or however long it takes to get the job done.

The end of Roe v. Wade could be just the beginning of the GOP's attack on legal abortion

This story was first published at The Progressive.

For supporters of abortion rights, the stakes could not be higher than they are this term at U.S. Supreme Court. With conservatives holding a 6-3 advantage on the bench, Roe v. Wade is on the chopping block.

Should Roe fall, abortion will lose its status as a federally protected Constitutional right. Even worse, abortion could become a crime, as it was in nearly every state before Roe was decided in 1973.

It's even possible—if Republicans capture the House, the Senate, and the presidency in 2024—that abortion could become a federal felony. Pregnant people, doctors, nurses, and other "aiders and abettors" could be prosecuted and go to jail for conduct that has been perfectly legal for the last four decades.

This is not hyperbolic.

The Supreme Court is considering three high-profile abortion cases this session that pose existential threats to Roe. Two of the cases—United States v. Texas and Whole Woman's Health v. Jackson—are from Texas and were argued on November 1. The other, Mississippi's Dobbs v. Jackson Women's Health Organization, is slated for oral arguments on December 1.

The Texas cases deal with a draconian abortion statute that took effect in September. The new law bans abortions once a fetal heartbeat can be detected, usually six weeks after fertilization. In a cynical twist designed to evade federal court review, the law empowers private individuals rather than the state to bring civil actions to enforce the ban.

After initially declining to hear the Texas cases, the Supreme Court agreed to review them on a limited procedural basis to determine whether federal judges have the legal authority to stop state court judges and private parties from enforcing the law. Though the Supreme Court is not expected to directly address the continued constitutionality of Roe, a victory for the state would leave the law in place and effectively overturn Roe in Texas. A victory for Texas would also encourage copycat legislation elsewhere.

Dobbs, by contrast, involves a direct substantive challenge to Roe. The case will test the Constitutionality of a Mississippi law enacted in 2018 that bans abortions after the fifteenth week of pregnancy, with exceptions for medical emergencies and severe fetal abnormalities. No exceptions are made for pregnancies resulting from rape and incest.

In a brief filed in July, Mississippi asked the court to jettison Roe. The state has been joined in that request by a slew of groups from the ultra-right that have filed amicus curiae ("friends of the court") briefs.

With Roe out of the way, anti-abortion laws will proliferate. According to the Guttmacher Institute, twenty-six states are likely to ban abortion if Roe is overruled. These include laws enacted before Roe that have never been removed from the books in Alabama, Arizona, Oklahoma, Arkansas, and other states; so-called "trigger" laws that will take effect automatically in Idaho, Kentucky, North Dakota, and elsewhere if Roe is invalidated; and state constitutional bans that will be activated and enforced in Alabama, Tennessee, and West Virginia.

The abortion bans will also likely spark criminal prosecutions under intense pressure from influential elements of the right-to-life movement. As Heather Lawless, co-founder of the Idaho-based Reliance Center, told National Public Radio last October following the confirmation of Amy Coney Barrett as Ruth Bader Ginsburg's replacement on the Supreme Court: "I don't think abortion should be legal, period. Because abortion at any stage is willfully taking a human life, and I don't think that should be legal—at all."

Though Lawless said she wouldn't want to see abortion patients prosecuted, she advocates holding doctors who perform abortions fully liable. Some anti-abortion hardliners are prepared to go even further.

Catherine Davis, the founder of the Restoration Project in Georgia, told NPR that she wouldn't rule out punishing patients for self-induced abortions. "If she decides to self-abort herself, then she's subjected to the same penalty as the doctor," Davis said, in an apparent reference to techniques such as the "morning-after pill."

Abortions, in her view, should be treated as murder and punished the same way, "up to and including capital punishment."

While Davis's position may be extreme even in right-to-life circles, the prospect of a cascade of post-Roe prosecutions has the criminal defense bar on high alert. Earlier this year, the National Association of Criminal Defense Lawyers (NACDL) released a comprehensive report warning that if Roe is rejected, state laws defining "personhood" to include the unborn "will expand the reach of criminal liability for serious offenses such as homicide, feticide, aggravated assault, and many other crimes."

Such laws, according to the report, already exist in Arkansas, Kentucky, Mississippi, Alabama, and South Carolina.

The report similarly cautions, in a reference to anyone who provides material assistance with abortions, that state and federal conspiracy laws could be used to subject "a wide range of individuals, beyond women seeking abortions and the doctors performing them, to criminal penalties."

Although most post-Roe abortion prosecutions would take place at the state level, some cases could be initiated by the U.S. Justice Department should Republicans regain the levers of federal power in 2024.

In 2003, with largely Republican sponsorship and support, Congress passed and President George W. Bush signed into law the Partial-Birth Abortion Ban Act, making it a federal felony for doctors to perform certain late-term abortions. The Supreme Court upheld the law as constitutional in 2007 in Gonzales v. Carhart by a vote of 5-4.

With Republicans back in control of government, it would only take a party-line vote to carve out an abortion exception to the filibuster rule in the Senate for the enactment of a federal statute criminalizing abortion nationwide.

The fallout from any of these developments would be devastating for all pregnant people, but particularly for people of color and the poor.

The first step in unleashing these dire consequences could be taken by the Supreme Court, which is now dominated by staunch anti-abortion conservatives. We'll know whether Roe will survive when the court releases the final decisions of its current term at the end of June 2022.

Editor's note: A previous version of this story incorrectly described the Guttmacher Institute.

Trump's post-presidency legal woes are multiplying fast

This story was first published at The Progressive.

The legal noose is tightening around Donald Trump's neck. Although we are still far from seeing the former commander-in-chief outfitted in a prison jumpsuit, Trump faces legal jeopardy on a variety of fronts related to his long history of corruption in the private sector and his malfeasance as President. And make no mistake: as Trump runs out of cards to play, the jeopardy becomes less and less of a political game he can spin in his favor. Things are getting serious.

Several recent developments have improved the odds that Trump will be brought to justice.

"If a hit man is hired and he kills somebody, the hit man goes to jail. But not only does the hit man go to jail, but the person who hired them does."

On July 1, the Trump Organization and its former Chief Financial Officer, Allen Weisselberg, were indicted by Manhattan District Attorney Cyrus Vance Jr. for tax fraud, grand larceny, and conspiracy.

While Trump has not yet been charged individually, the indictment refers to an "unindicted co-conspirator" who allegedly "agreed to and implemented" Weisselberg's tax evasion scheme. Since little happens in Trump's financial empire without his knowledge and consent, the reference points to Trump, who could well be named as a defendant in the near future by way of an amended indictment.

Attorney General Letitia James has joined Vance's criminal probe, fortifying the courtroom firepower arrayed against Trump. In 2019, James opened a separate civil investigation of Trump's business practices that could result in significant fines and the formal dissolution of the Trump Organization.

In addition, Fulton County, Georgia, District Attorney Fani Willis has convened two grand juries to investigate Trump for pressuring the Georgia Secretary of State to overturn the results of the 2020 election. In March, Willis reportedly hired attorney John Floyd, a nationally recognized authority on racketeering and conspiracy law, to advise her on the probe.

Even if Trump manages to dodge personal liability in New York and Georgia, he will hardly be in the clear. First and foremost, he will find himself squarely in the crosshairs of the House Select Committee to Investigate the January 6 Attack on the United States Capitol. The committee was established to report on the causes and consequences of the insurrection that delayed and nearly prevented Congress from certifying Joe Biden's victory in the Electoral College.

The committee held its first public session on July 27, featuring dramatic testimony from four law enforcement officers (two from the Capitol Police and two from the District of Columbia's Metropolitan Police Department) who defended Congress against the violent mob of MAGA rioters that stormed the Capitol on January 6. Together, they recounted the horror, brutality, and racism of the rampage, laying the blame for the event squarely on Trump and his high-level enablers.

As Capitol Police officer Harry Dunn told the committee: "If a hit man is hired and he kills somebody, the hit man goes to jail. But not only does the hit man go to jail, but the person who hired them does. It was an attack carried out on January 6 and a hit man sent them. I want you to get to the bottom of that."

The select committee is equipped with subpoena power to fulfill Dunn's wishes.

In a July 28 interview with MSNBC's Ari Melber, former Watergate prosecutor Nick Ackerman said he believes the committee will use that power to subpoena and depose Trump, Rudy Giuliani, and Representative Mo Brooks, Republican of Alabama, who revved up the rioters on January 6 in speeches delivered before the assault on the Capitol. The committee, Ackerman said, will piece together a damning "jigsaw puzzle" to explain exactly what occurred on January 6.

"And they don't really have much of a defense here," Ackerman explained. "I think the more [the committee] can dig into the evidence showing that Trump and Rudy Giuliani and Brooks knew these people had come . . . looking for a fight—the more they can show what they were doing [was] inciting this riot. That's not going to fly well with [a] jury [in] the District of Columbia."

According to press reports, the committee is working on its future witness list and preparing to set a new round of hearings. And while it remains to be seen if Trump actually will be summoned, Representative Bennie Thompson, Democrat of Mississippi, the panel's chairman, has publicly stated the committee won't hesitate to call Trump, or officials from the Trump Administration, or members of Congress, such as Minority Leader Kevin McCarthy, Republican of California, and Representative Jim Jordan, Republican of Ohio, who spoke with Trump on January 6. Thompson has also vowed to go to court to enforce any subpoenas that are issued.

With or without Trump's testimony, the committee is likely to amass an unassailable record of the former President's part in inciting the insurrection, setting the stage for a referral to the Department of Justice for possible prosecution.

In an encouraging sign that the DOJ is taking the investigation seriously, the department issued a set of letters late last month to former Trump Administration officials, informing that it would not invoke the doctrine of executive privilege to shield them from testifying before Congress about the Capitol attack.

In a similar vein, the DOJ's Office of Legal Counsel recently published a formal opinion, confirming that the Treasury Department and the Internal Revenue Service "must furnish" Trump's tax returns to the House Ways and Means Committee.

Compounding Trump's legal miseries further is the federal civil suit filed by Representative Eric Swalwell, Democrat of California, against Trump for inciting the insurrection. Swalwell's complaint, which also names Giuliani and Brooks as defendants, seeks both compensatory and punitive monetary damages, as well as a judicial declaration that the trio violated federal law.

In a court filing last week, the DOJ declined to intervene in the case and take on Brooks's defense, as it would in many lawsuits involving federal employees. In reasoning that also applies to Trump, the department explained that Brooks's involvement in the events leading up to the Capitol attack was beyond the scope and duties of his employment.

The DOJ is also moving forward with the prosecution of more than 500 Capitol rioters, some of whom have come to blame Trump for their conduct.

All of this is very bad news for the former President. The key now is to ramp up the pressure and persevere until Trump and the neo-fascist movement he represents are finally held to account.

The day the Supreme Court showed its disturbing new face

This story was first published by The Progressive.

The U.S. Supreme Court is not a democratic institution. It consists of nine unelected elite lawyers armed with the tools and techniques of judicial review. They, not "the People," often get the last word on vital questions of social, economic, and even political policy.

Whether this is a smart way to run a democracy has largely been a moot point since the court declared in Marbury v. Madison (1803) that it had the authority to find acts of Congress unconstitutional. The big question today, as always, is whether the court can operate in a politically neutral manner and stay above the partisan fray while discharging its awesome power.

Throughout much of the court's 2020 term, which commenced last October, it may have been plausible to believe that the high tribunal was charting a moderate course, even with six conservative Republican appointees at the helm. In the mainstream press, a middle-of-the-road consensus had emerged that the court was only incrementally moving to the right, and was by no means the threat that some observers had feared when Donald Trump hastily named Amy Coney Barrett to replace the late liberal icon Ruth Bader Ginsburg.

CNN legal analyst Joan Biskupic expressed the consensus well in a column posted online in mid-June, suggesting that rather than cleaving along partisan lines, the court was displaying more of a 3-3-3 alignment, with Chief Justice John Roberts joining Barrett and Brett Kavanaugh to establish a dominant center-right bloc.

The center-right alliance, Biskupic argued, was proving effective in checking the more extreme impulses of the tribunal's most doctrinaire members, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.

No more.

Whatever validity the consensus may have had was obliterated on July 1, just before the court broke for summer recess, with the release of a stunning 6-3 majority opinion written by Alito in the case of Brnovich v. Democratic National Committee. The ruling tore another gaping hole in the Voting Rights Act of 1965 and signaled that the panel's rightwing ideologues were fully in control.

At issue in Brnovich was an Arizona statute that criminalizes the collection of mail-in ballots by third parties other than family members and caregivers (a practice called "ballot harvesting"), and a state regulatory policy that requires all in-person ballots, even provisional ones, to be invalidated if they are cast by voters outside of their registered precincts. Democrats contested both measures under Section 2 of the Voting Rights Act, which permits challenges to election practices that discriminate on the basis of race.

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Dividing along starkly political lines, Alito and his Republican colleagues handed the state a complete victory. Channeling GOP post-election talking points about nonexistent voter fraud almost word for word, Alito wrote that Arizona was justified in imposing the measures because of its "strong and entirely legitimate . . . interest in preventing election fraud," which, he asserted, "can affect the outcome of a close election" and "undermine public confidence in the fairness of elections."

"The Brnovich opinion," says Erwin Chemerinsky, dean of the law school at the University of California, Berkeley, "will greatly weaken the Voting Rights Act."

The opinion is especially bad when considered in context. "Eight years ago, in Shelby County v. Holder," Chemerinsky explains, "the court nullified provisions of the act [found in Sections 4 and 5] that required jurisdictions with a history of racial discrimination to obtain pre-approval" of changes to election procedures from either the Justice Department or a three-judge panel sitting in Washington, D.C.

"Had those preclearance provisions remained intact, many of the new suppression laws we're seeing in Georgia and elsewhere would never have been implemented," Chemerinsky says. "Now, the Supreme Court has made it harder for the U.S. Attorney General or others to sue the states under Section 2 when they pass laws that have a discriminatory impact on minority voters."

The court also handed down another ideologically tinged decision on July 1 with a 6-3 majority opinion written by Roberts in Americans for Prosperity Foundation v. Bonta. The decision struck down a California regulation that requires registered charities and nonprofits to disclose the identities of major donors (those contributing more than $5,000). Americans for Prosperity is a tax-exempt organization long linked to the Koch brothers. Critics of the decision charge that it will open the door to more "dark money" in elections.

The damage caused by the Roberts Court to democratic norms and values runs deep. Harvard Law School professor Michael Klarman summed up the panel's cumulative record under Roberts's stewardship in an essay published last February in The Atlantic:

"With their majority on the court, the Republican Justices have undermined labor unions, unleashed money in politics, protected corporations from class-action litigation and punitive-damage awards, curbed antitrust law, eroded the Constitutional right to abortion, invalidated gun-control measures, struck down voluntary efforts by school boards to achieve integration through race-conscious means, and threatened to abolish race-based affirmative action." (See sidebar for some of the Roberts Court's worst rulings.)

Klarman's assessment raises another crucial question: What, if anything, can be done to reverse the high court's lurch to the right?

In his article, Klarman called for expanding the number of Justices from nine to thirteen, with the four newcomers to be appointed by President Joe Biden while the Democrats control the Senate, albeit by the slimmest of margins. Such a move would create a center-left court that in Klarman's view would match the center-left orientation of the country as a whole.

Klarman sits on the advisory board of the progressive advocacy group Take Back the Court, founded in 2018 by San Francisco State University professor Aaron Belkin. The board is co-chaired by Harvard Law School professor Mark Tushnet and Color of Change board of directors chair Heather McGhee. It also includes CNN host W. Kamau Bell, former Federal Election Commission chair Ann Ravel, and Yale Law professor Samuel Moyn.

"The Supreme Court is broken," says Belkin, expounding on his organization's origin and purpose. "The court was stolen in 2016 when a vacancy opened after Antonin Scalia died, and Mitch McConnell and Senate Republicans would not allow President Obama to fill that vacancy with Merrick Garland."

Surveying the state of the nation in the aftermath of Trump's three high-court appointments and the chaos created by the forty-fifth President, he says, "American democracy is hanging by a thread."

And the Supreme Court, he argues, is a big part of the problem.

"For years now, the court has been sabotaging democracy on behalf of big corporations, the Republican Party, and the party's donor class," Belkin says. "With the retirement of Justice Anthony Kennedy in 2018, the entire regulatory administrative state has been placed at risk, throwing everything progressives care about, including the need to respond to the existential crisis of climate change, into jeopardy."

These are long-term trends, he stresses, rejecting suggestions that big changes at the court are unwarranted because of a handful of recent rulings that uphold LGBTQ+ rights, preserve Obamacare, and reject efforts to overturn the results of the 2020 presidential election. In the final days of this past term, the court also ruled in favor of the off-campus free speech rights of public high school students and sided with college athletes in a dispute with the NCAA that could eventually lead to athletes getting paid for their skills and hard work.

Belkin dismisses the idea that the court is best described as having a 3-3-3 split and a generally moderate orientation. "That's bullshit," he counters. "Even the most conservative court sometimes issues progressive rulings. But this remains an exceedingly pro-business court."

Indeed, a study released by the D.C.-based Constitutional Accountability Center in early July found that corporate interests prevailed in 83 percent of business-related cases this past term. Says Belkin, "The court is doing the same thing today that it's been doing for a generation, which is rigging the system and compromising democracy on behalf of the GOP."

Belkin understands the uphill nature of the fight to expand the court, but he's used to uphill battles. He was a leader in the gay rights campaign to overturn the military's "Don't Ask, Don't Tell" policy, a struggle that took more than ten years to succeed.

"When we started Take Back," he says, "hardly anyone was talking about court expansion." The issue, in fact, had been largely dormant since Franklin Delano Roosevelt's failed "court-packing" plan of 1937.

That's no longer true. In June 2020, Take Back the Court signed an open letter urging court expansion together with eight other left-liberal groups, including the Sunrise Movement, the Progressive Change Institute, Friends of the Earth, and Since then, according to Belkin, the number of organizations calling for court expansion has swelled to more than fifty.

One of those organizations is Demand Justice, established in 2018 by communications specialist Brian Fallon, the group's executive director, and attorney Christopher Kang, who holds the title of chief counsel. Both are veteran political hands. Fallon served as Hillary Clinton's national press secretary during the 2016 presidential race. Kang spent nearly seven years in the Obama White House as a deputy counsel and adviser on legislative affairs.

"The first and foremost change we need to see," says Kang, "is court expansion to restore balance and legitimacy to the court. We need to fight for a court that stands for justice and equality" for all Americans.

Technically, court expansion is a relatively simple and straightforward proposition. The number of Supreme Court justices isn't set by the Constitution. It's set by Congress, which has changed the size of the court seven times, dating back to the Judiciary Act of 1789.

Over the decades, the number has varied from five to ten, when the panel was last expanded in 1863. The court was reduced to nine members in 1869, and has remained at nine ever since.

"Expansion is clearly legal, requires no Constitutional amendment, and is the fastest way to restore balance to the court," Kang maintains.

The biggest obstacle to expansion is political, and it's a big one. For the court to be enlarged, legislation would have to clear both houses of Congress, and overcome a Republican-led filibuster in the Senate. But with conservative Democratic Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona on record as opposing changes to the filibuster rule in the upper chamber, the prospects for expansion are slim.

Still, progress is being made. Court expansion became a hot topic during the 2020 presidential race, and some leading Democrats have taken up the cause, backing legislation to accomplish the objective.

Both Belkin and Kang were on hand for a press conference in April on the steps of the Supreme Court convened to announce the introduction of the Judiciary Act of 2021 in both the House and Senate. The bill calls for four Justices to be added to the court. It currently has twenty-seven House co-sponsors, including Judiciary Committee chair Jerry Nadler of New York and leading progressives including Alexandria Ocasio-Cortez of New York, Rashida Tlaib of Michigan, and Sheila Jackson Lee of Texas.

However, neither House Speaker Nancy Pelosi nor Senate Majority Leader Chuck Schumer has come out in favor of the measure. Nor has President Biden.

Biden has instead appointed a thirty-six-member bipartisan commission, consisting largely of law professors drawn from both ends of the political spectrum, to study the issue of expansion. The commission held its first public session in May, and is expected to consider other court-reform ideas as well, such as imposing term limits on the tenure of the Justices; drafting an ethics code for the court (which is currently the only federal judicial body not bound by the Code of Conduct for U.S. Judges); and restricting the court's so-called shadow docket.

The "shadow docket" refers to the growing list of emergency orders the court has issued in recent terms without oral argument or full briefing. Such orders have been used to overturn lower-court rulings in a variety of contexts, permitting the court to quickly lift stays of execution in death penalty cases, and block state-imposed COVID-19 lockdown procedures.

Belkin and Kang have little faith in the commission, which Kang calls "unnecessary" and Belkin lambasts as a "garbage-in-and-garbage-out head fake" that will "waste time and run out the clock when action is urgently needed."

Meanwhile, as they agitate for expansion, Belkin, Kang, and others are urging Justice Stephen Breyer to resign, which would allow Biden to fulfill his campaign pledge to appoint a Black woman to the court. Breyer, who has been on the court since 1994, will turn eighty-three years old in August.

On April 9, Demand Justice hired a billboard truck to circle Capitol Hill, bearing the message "Breyer, Retire" in neon green lettering. The event, says Kang, was scheduled to coincide with the anniversary of the late Justice John Paul Stevens's retirement announcement in 2010.

In June, Demand Justice followed up the truck deployment with a full-page ad in Politico calling on Breyer to step down, and an ad with the same exhortation in The New York Times signed by eighteen Constitutional law scholars, among them Belkin and Chemerinsky.

Thus far, however, Breyer has given no hint of leaving. In a speech at Harvard in April, he also came out against court expansion, arguing that such a move would further erode public trust in the courts.

Breyer's position has disappointed many reform advocates. "If Justice Breyer wants someone with his values and views to take his place," says Chemerinsky, "he needs to sit down with the Democratic President and Democrats in the Senate."

In 2014, Chemerinsky urged Ginsburg to resign, but to no avail. "She took great offense," he recalls. "She gambled and we lost. I don't want to see Justice Breyer take that same gamble only to lose again."

Returning to the subject of expansion, Chemerinsky offers a grim warning: "Amy Coney Barrett was forty-eight when she was sworn in. If she stays on the court until she's eighty-seven, the same age when Justice Ginsburg died, she'll be a Justice until the year 2059. It is also likely that other conservatives currently on the court will be with her for another decade or more. So, unless we agree to accept a very conservative court for a long time to come, I don't see any solution but court expansion."

As unattainable as that goal may seem at the moment, the expansion movement is likely to get louder and larger in the future. "Every time the court comes out with an extreme decision, it makes the argument on expansion and rebalancing for us," says Kang.

Next term, Kang says, could prove to be the turning point for the movement, as the court is scheduled to hear cases on abortion, gun control, and possibly affirmative action—all hot-button subjects that will place the court directly in the political crosshairs heading into the 2022 elections and beyond.

If Democrats and progressives don't move the needle on court reform, they will be at least partly responsible for the failure. "The right wing in this country has had a leg up on court packing for a generation," says University of Colorado law professor Paul Campos, who has endorsed the call for Breyer's resignation and also supports expansion. "They've been laser-focused. Much of the left still subscribes to the delusion that the courts are nonpartisan and neutral."

Belkin, for his part, pledges there will be no retreat on the court-reform front. "If someone steals your wallet," he says, "you don't walk away. You take it back." The same, he reminds us, applies to democracy.

The Supreme Court is poised to radically expand the Second Amendment

This story was first published at The Progressive.

The United States is locked and loaded. This nation has more guns than people and, not surprisingly, an appalling level of gun violence.

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 July 10, the United States had recorded more than 23,200 deaths from firearms, counting both suicides and unlawful killings, according to the Washington, D.C.-based Gun Violence Archive. We also have had more than 340 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 in a case it will hear next fall.

The case is New York State Pistol Association v. Corlett. It was brought by two individuals and the state affiliate of the National Rifle Association to overturn a New York law that places strict limits on the issuance of concealed weapons permits.

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 violates the Second Amendment. It wants even more guns on our streets and in our communities.

After losing in the lower courts, the plaintiffs appealed to the Supreme Court, where they are considered 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 our most powerful judicial body. No longer constrained by the need for caution and compromise, they are set to dramatically extend gun rights under the Second Amendment.

Should the New York statute be declared unconstitutional, similar measures in California, New Jersey, Delaware, Hawaii, Maryland, Massachusetts, Connecticut, and elsewhere could also fall, with dire and deadly consequences for public safety.

It's worth remembering, as we prepare for the onslaught, that the Supreme Court wasn't always a friendly venue for the NRA and the gun-rights lobby. To the contrary, prior to the court's landmark 2008 ruling in District of Columbia v. 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.

Heller stood the prior consensus on its head, courtesy of the controversial 5-4 majority opinion in the case authored by the conservative fanatic Antonin Scalia. Scalia's perspective emerged victorious, but not without an intense struggle inside the court. As Justice John Paul Stevens, joined by three of his colleagues, wrote in dissent:

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.

In 2010, the court issued another 5-4 decision in McDonald v. Chicago, which extended Heller, holding that the individual right to 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, thus became the law of the land. The amendment has since been elevated in rightwing circles to the status of holy writ.

Both Scalia and Stevens have since passed, but the clashing views they espoused on the Second Amendment have endured, even as the United States careens from one blood-stained catastrophe to the next, from the March 16 spa shootings in Atlanta, Georgia, which claimed eight lives; to the May 26 slayings in San Jose, California, in which ten people died; and the July 4 incident in Toledo, Ohio, in which one person was killed and eleven others were wounded.

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, gun-rights groups have worked to bring a new test case to the Supreme Court to extend the right to bear arms beyond the home. They almost succeeded last year in another case from New York, but that appeal was ultimately dismissed.

Now, they have another vehicle in Corlett, which could well remove the last remaining judicial guardrails on the Second Amendment.

Woe to us all if that happens.

A dark preview of the right-wing Supreme Court's sweeping agenda

This story was first published in The Progressive.

Don't be fooled by the Supreme Court's rejection of former President Donald Trump's baseless challenges to the results of the 2020 election. The high tribunal is no friend of liberals and progressives.

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 nation's most powerful judicial body. No longer constrained by the need for compromise and caution, they are poised to drive U.S. law dramatically to the right.

By the time the court concludes its current term at the end of June, it will hand down decisions that could gut Obamacare, undermine the Voting Rights Act, elevate "religious liberty" interests above other Constitutional rights, and deal organized labor another major setback.

And the potential damage won't stop there. Next term, which begins in October, the court will pass judgment not only on Mississippi's draconian abortion law, but also on a new and far-reaching Second Amendment appeal from New York.

Here's a closer look at the key cases.

Health care:

All eyes are on California v. Texas, the latest assault on the Affordable Care Act (ACA).

As originally enacted, the "individual mandate" in the ACA required most people to obtain health insurance or pay a monetary penalty. In 2012, the Supreme Court upheld the mandate as a proper exercise of Congress's power to levy taxes.

In 2017, however, Congress got rid of the penalty as part of the Trump Administration's outrageously pro-corporate tax reform legislation. Although Congress did not explicitly repeal the mandate and left the rest of the ACA intact (remember John McCain's famous thumbs-down vote on the Senate floor?), a coalition of largely GOP-controlled states led by Texas filed a federal lawsuit to declare both the mandate and the entire ACA unconstitutional. District Court Judge Reed O'Connor, a George W. Bush appointee and a Federalist Society member who may just be the most reactionary jurist in the country, agreed, and issued a sweeping ruling that, if upheld, would overturn the entire ACA.

Urged by California and a group of largely Democratic-led states, the Supreme Court opted to review the case, and conducted oral arguments in November. If the court affirms Reed's decision and strikes down the entire ACA, it will commit an act of judicial barbarism. Should the court topple the mandate but preserve the rest of the act, the result would be less egregious, but would likely fuel additional challenges to other sections of the ACA.

Such a challenge is currently underway in another lawsuit pending before Judge O'Connor that aims to invalidate the act's requirement that birth control, cancer screenings and other forms of preventive care be covered by all health insurance policies.

Voting rights:

Voting rights are another area that have come under threat by SCOTUS's new conservative majority, most recently with a pair of cases from Arizona, Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee.

In its 2013 decision in Shelby County v. Holder, the Supreme Court declared the "pre-clearance" requirements of the Voting Rights Act of 1965 (VRA) unconstitutional. The preclearance process, as set forth in sections 4 and 5 of the VRA, was a bulwark against voter suppression, compelling states and local governments with a history of voting discrimination to obtain advance approval from the Department of Justice or a panel of federal judges before instituting changes in election procedures.

Preclearance placed the burden of proof and the costs of initiating litigation on the proponents of voter suppression. Shelby County flipped the burden, forcing defenders of voting rights to file and fund expensive lawsuits against suppression measures under section 2 of the VRA.

The court is now reexamining section 2 in the Arizona cases. Depending on the scope of its ruling, the court could deal another crippling blow to voting rights amid a massive upsurge of voter suppression bills introduced in states across the country in the aftermath of the 2020 elections. Oral arguments were heard in March.

"Religious liberty":

Far-right Christian views of abortion, health care, and sexuality are also getting renewed attention in SCOTUS, as in the case of Fulton v. City of Philadelphia.

Since its 2014 ruling in Burwell v. Hobby Lobby Stores, the Supreme Court's conservatives have been on a mission to uphold the "religious liberty" interests of privately held corporations that exclude birth control coverage from employee health-insurance benefits, religious schools that receive public funding for infrastructure improvements, bakers who refuse to decorate wedding cakes for gay customers, and, more recently, churches that object to COVID-19 lockdown regulations.

In Fulton, Catholic Social Services (CSS), a faith-based foster-care agency that refuses to place children with LGBTQ+ parents, is trying to extend the religious-liberty winning streak. CSS argues it should be exempt from Philadelphia's nondiscrimination policies governing foster-care and adoption placements. If the recent past is any prologue, don't bet against CSS. Oral arguments took place in November.


Labor rights and the ability of workers to organize, too, seem ready to take a hit in Cedar Point Nursery v. Hassid.

The Supreme Court under the leadership of Chief Justice John Roberts has never been kind to organized labor. In 2018, the court held in Janus v. AFSCME that the collection of fair-share fees from nonconsenting public employees to finance collective bargaining violated the First Amendment.

In Cedar Point Nursery, the court has been asked to scuttle a 1975 California law championed by Cesar Chavez that allows organizers temporary access to farms and fields to encourage workers to join unions. A group of growers contends the law allows for acts of trespass in violation of their property rights under the Fifth Amendment. Oral arguments were heard in March.

Gun ownership:

In its landmark 2008 opinion in District of Columbia v. Heller, the Supreme Court held for the first time that the Second Amendment protects an individual right to gun ownership.

Heller dealt specifically with the right to keep guns in the home. Since then, gun rights organizations like the NRA have worked to bring another test case to the Supreme Court to extend the right to bear arms beyond the home.

They may have found their vehicle in New York State Pistol Association v. Corlett, which challenges a New York law that places strict limits on the issuance of concealed weapons permits. If the lawsuit succeeds, there will be even more lethal weapons in our communities. The case has been placed on the docket for the court's next term, which commences in October.

Reproductive rights:

Of all the fevered dreams of the American right, nothing approaches the desire to overturn Roe v. Wade and revoke the constitutional right to abortion. The case of Dobbs v. Jackson Women's Health Organization may make the right's dream a reality.

At issue is a 2018 Mississippi law that bans almost all abortions after fifteen weeks, roughly two months earlier than the standard for fetal viability set by Roe. Like Corlett, Dobbs has been placed on next term's calendar. It promises to be a blockbuster.

Predicting the precise outcome of Supreme Court cases is often difficult. It's always possible that the Justices who comprise the court's conservative majority will take a scalpel rather than an axe to their deliberations in the pivotal cases before them. But one thing is certain: The power is now in their hands.

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