The Federalist Society method

The Federalist Society method for radical social change is a page from any democracy to authoritarianism legal playbook.  You need to change the laws to protect the interests of your patrons by moving power to institutions you already control.   You take the legal result you want, have legal scholars create a doctrine that will support a ruling in your favor, promulgate that doctrine in the media (the “Independent State Legislature Doctrine” for example [1]) as you find the perfect legal case to apply that doctrine to and strike down a hated law or regulation.  Select the ideal federal district where the carefully chosen case can be brought, ideally a place where any appeal will be heard by a panel of Federalist Society members.   Preserve all arguments, no matter how far-fetched, for appeal and wind up at the Supreme Court, controlled by your members.  Have numerous Federalist Society scholars submit amicus (“friend of the court”) briefs, giving legal support for the desired ruling.   

If the case calls for throwing out state law to have your desired result, you have a doctrine ready (unregulated gun rights too sacred to be left to the states).  If it calls for overriding federal law, use a different doctrine (Christ says life begins at fertilization, federal government has no right to contradict the Messiah, only states can do that).  Heather Cox Richardson provides detail on two chilling examples (see footnotes).  The rulings are often legally and logically ridiculous, but no worries, the ends justify the means, plus, we have the votes.  Plus, nothing infuriates the libs like an irrational, inappealable in-your-fucking-face “fuck you”.

They are openly playing a brutal game, as they move the country toward a Christian fascist autocracy.  We are to understand that no matter how popular a given position is among voters, whatever fix Congress might make, whatever the unanimous upholding of a law might say about its necessity to a free democracy, the final say is left to the Federalist Society majority on the highest court in the land.  They just ruled, 6-3, that the Clean Air Act does not give the Environmental Protection Agency the right to regulate things like carbon emissions that pollute the air, presumably because that exact phrase was not used in the law creating the EPA (just a guess) [2].  Media reports this devastating anti-climate ruling as “SCOTUS hamstrings Biden’s plans to combat Climate Change,” as though the 79 year-old Biden is the only victim of this criminal ruling.  The only beneficiaries of the ruling are outfits like Exxon, Koch Industries and Halliburton, major drivers of “Biden inflation” as they reap record profits by raising gas prices to near-record levels.

I read Shelby County v. Holder during the 2020 election.   That was the 5-4 “conservative” ruling that overruled a 98-0 Senate vote to reauthorize the Voting Rights Act and the strongly expressed support of the previous Republican president.  The Federalist Society knows that their side loses any election in which there is massive voter turnout, so making voting more difficult is a big win for them.  John Roberts was careful not to touch the law itself, he merely made it impossible to enforce that law, short of going to court again and again in every jurisdiction that might violate the law with new voter suppression methods.  The law prevented chicanery to suppress the vote among minority populations, and required preclearance for new laws to make voting harder in jurisdictions that had previously resorted to such chicanery.   Roberts waved a judicial wand to make the history of voter suppression disappear, because the Voting Rights Act had fixed it.   See, no need for enforcement!

Roberts cited voting statistics from formerly openly racist districts to show that there was equal access to the polls for whites and Blacks, then voting in numbers reflecting their relative size in the population.   Proof that there was no further need to enforce the Voting Rights Act.   He falsely claimed that Congress had wrongly relied on forty year old data when reauthorizing the Act.  There were numerous hearings and a mountain of current data presented before gigantic majorities in both houses of Congress reauthorized the law and George W. Bush held a signing ceremony where he underscored the importance of this law to our democracy.   

But, you know, that all smells too much like democracy, “majoritarian tyranny,” for persecuted mega-donors like “Mr. Dark Money”, Charles Koch.   So, as soon as Shelby County was decided, numerous Republican-controlled states immediately enacted laws to suppress the vote. Just as many anti-abortion “trigger laws” went into effect as soon as the Unappealable Six struck down Roe v. Wade in a masterpiece of judicial illogic.

There is only one solution to this illegitimate, inconsistent, rabidly partisan court.  It, along with the rest of the federal bench, was packed with committed Federalist Society zealots by the unprincipled Mitch McConnell, using his power to obstruct Obama and the idiot Trump who kept his promise to the Council on National Policy (in return for them blessing his candidacy) to select judges only from Federalist Society lists of its top ideologues.  The illegitimately packed Supreme Court must now be rebalanced and there is no constitutional reason not to expand the court.  Biden has shied away from this fight, kicking the can down the road by appointing a bipartisan panel to explore the issue before letting it quietly die.   Biden has many other fights on his plate, against unified Republican opposition and two bought and paid for Democratic defenders of the obstructionist filibuster.  He also doesn’t have the votes, with Manchin and Sinema scrupulously “neutral” on allowing any legislation to come up for a vote in the Senate.

Now the president calls for a filibuster carve out to allow the Senate to codify Roe 51-49.  As if any such law would not be quickly litigated by the Federalist Society and struck down by the Federalist Society Six — three of which were appointed by razor thin majorities after McConnell’s filibuster carve out for Supreme Court justices.  Biden didn’t call for a carve out to make federal rules for federal elections, to protect voting rights as state after state made laws that would not have passed the pre-Shelby County Voting Rights Act.   He didn’t call for a carve out for legislation to mitigate Climate Catastrophe.   He doesn’t have the votes now, I understand, but, come on, man, part of your fucking job is inspiring confidence in people who voted for you.   How are Democrats supposed to pick up Senate seats, to allow his administration to get anything done, when Mr. Biden is hesitant to speak truth to power?  Power concedes nothing without a demand, as Frederick Douglass, Trump’s facebook friend, noted many moons ago.   

[1]  from the great Heather Cox Richardson:

The court also said today that it will consider making even greater changes to our country. It will hear Moore v. Harper, a case about whether state legislatures alone have the power to set election rules even if their laws violate state constitutions. 

The case comes from North Carolina, where the state supreme court rejected a dramatically partisan gerrymander. Republicans say that the state court cannot stop the legislature’s carving up of the state because of the “independent state legislatures doctrine.” This is a new idea, based on the clause in the U.S. Constitution providing that “[t]he times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Those adhering to the independent state legislature theory ignore the second part of that provision.

Those advancing the independent state legislature theory also point to another clause of the Constitution. It says: “Each State shall appoint, in such Manner as the Legis­lature thereof may direct, a Number of Elect­ors.”

Until now, states have interpreted “legislatures” to mean the state’s general lawmaking processes, which include shared power and checks and balances among the three branches of state government. Now, a radical minority insists that a legislature is a legislature alone, unchecked by state courts or state constitutions that prohibit gerrymandering. This interpretation of the Constitution is radical and new. It caught on in 2015, when Republicans wanted to get rid of an independent redistricting commission in Arizona.

This doctrine is, of course, what Trump and his allies pushed for to keep him in power in 2020: Republican state legislatures throwing out the will of the people and sending electors for Trump to Congress rather than the Biden electors the majority voted for. 

That doctrine would also give to state legislatures the power to control who can vote, and how and where they can do so. It would strip power from elections commissions and secretaries of state, and it would take from state courts the power to challenge gerrymandering or voter suppression. Republicans currently control 30 state legislatures, in large part thanks to the gerrymandering and voter suppression in place in a number of those states. 

Revered conservative judge J. Michael Luttig has been trying for months to sound the alarm that this doctrine is a blueprint for Republicans to steal the 2024 election. In April, before the court agreed to take on the Moore v. Harper case, he wrote: “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.”

And yet in March, when the Supreme Court let the state supreme court’s decision against the radical map stay in place for 2022, justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh indicated they are open to the idea that state courts have no role in overseeing the rules for federal elections. 

In the one term Trump’s three justices have been on the court, they have decimated the legal landscape under which we have lived for generations, slashing power from the federal government, where Congress represents the majority, and returning it to states, where a Republican minority can impose its will. Thanks to the skewing of our electoral system, those states are now poised to take control of our federal government permanently.

[2]  Heather:

Today, the court’s decision in West Virginia v. Environmental Protection Agency reversed almost 100 years of jurisprudence by arguing that Congress cannot delegate authority on “major questions” to agencies in the executive branch. At stake were EPA regulations that would push fossil fuel producers toward clean energy in order to combat climate change. The vote was 6 to 3, along ideological lines. That the court agreed to hear the case despite the fact that the rules being challenged had been abandoned suggested they were determined to make a point. 

That point was to hamstring federal regulation of business. The argument at the heart of this decision is called the “nondelegation doctrine,” which says that Congress, which constitutes the legislative branch of the government, cannot delegate legislative authority to the executive branch. Most of the regulatory bodies in our government are housed in the executive branch. So the nondelegation doctrine would hamstring the modern regulatory state.

To avoid this extreme conclusion, the majority on the court embraced the “major questions” doctrine, which Chief Justice Roberts used today for the first time in a majority opinion. 

That doctrine says that Congress must not delegate “major” issues to an agency, saying that such major issues must be explicitly authorized by Congress. But the abuse of the Senate filibuster by Republican senators means that no such laws stand a hope of passing. So the Supreme Court has essentially stopped the federal government from responding as effectively as it must to climate change. And that will have international repercussions: the inability of the U.S. government to address the crisis means that other countries will likely fall behind as well. The decision will likely apply not just to the EPA, but to a whole host of business regulations.

As recently as 2001, the Supreme Court unanimously rejected the nondelegation argument in a decision written by Justice Antonin Scalia, who said the court must trust Congress to take care of its own power. But now it has become law.

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