What a courageous Congress could do to rein in a rogue Supreme Court

Hard to imagine a courageous Congress, I know, but the size of the majority decides alot, in courage and on ability to pass laws. One dick like Sinema, one twat like Manchin and there goes your ability to legislate, either of those vote with the 50 lockstep Trumpistas and Biden is weak and unable to pass laws, implement policies

A bigger Democratic majority in both houses in 2023 will enable senators to carve out the filibuster for voting rights, avoiding climate catastrophe and rebalancing the. Supreme Court. McConnell promptly did away with the filibuster for Supreme Court nominees right after Trump’s inauguration to install three 51-49 right-wing Christian extremists. The Koch-packed court, chosen for demonstrated loyalty to a set of ultra- conservative values, must be expanded. Federal voting rights must be protected, steps to halt the ecosphere’s destruction must start. There is no other option, really.

Meanwhile, here are some good ideas for a strong Congress to do, from a Harvard Law School professor who was on a panel, speaking to Dahlia Lithwick on her excellent podcast Amicus (link below🙂

Nico Booy (faculty, Harvard Law School): But in the past, when Congress and the court have been in conflict and Congress has been motivated to do something, Congress has so many weapons at its disposal to ensure that our democracy is run by a legislature and not by a court. So Congress can strip the court of jurisdiction. It can strip the court of its building. It can strip the court of its summer recess. It can strip the court of its clerks. It can say, if you want to strike down our democratic laws, do so yourselves. Rather than relying on these 24 year olds, they can strip the court of it’s discretionary jurisdiction. It can strip the court of the power to enjoin laws. It can say no more federal courts can enjoin national laws and a nationwide system without a super-majority of the Supreme Court. It can change the court’s jurisdiction. It can put the court’s jurisdiction in the D.C. Circuit. Congress can do all sorts of stuff. And in the past, Congress has done so. When Congress was worried about the court invalidating Reconstruction, it simply took the case out of the court’s hand and said, Court, you no longer have jurisdiction over these cases.

The problem we’re facing now is a Congress unwilling to fight back, not a Congress incapable of fighting back. And I think the conflict is something that Congress needs to embrace, because I think, as you were correctly, identifying the status quo is going to lead to an unsustainable system in which everyone is being forced to give birth, in which we’re all going to burn, because we’re not doing anything about climate change in which no one can vote except for members of the Supreme Court.

https://slate.com/transcripts/STFOYk8vVnAwYWwveUN0SjRBTXk3aWZuTUR5NnpzUkZ0ejB4VnFUdDZFZz0=

TPD- Tyrannical Personality Disorder

Fascists select leaders with what I think of (the current DSM is mute on this one) as Tyrannical Personality Disorder.  A person with TPD simply does not take any shit, never backs down, is always right no matter what, doubles all risky bets whenever challenged, gets ugly, public revenge 100% of the time on anyone who crosses them, or might.   The GOP has become, finally, the party of TPD.   Reactionary extremists are always this way — they have a vision of unchallengeable power that must be implemented by any means imaginable.  Often they will say contradictory, even opposite, things, sometimes simultaneously.   The “logic” of fascists, of all TPD types, is almost always incoherent.  In the absence of reason, there is only will, and, in their eternal war weltanschauung, the triumph of the superior will. 

The reactionary drive to now make it a federal crime for pregnant women and girls (and trans men with wombs, I suppose) to travel from a state where abortion is banned to a state where abortion is legal is now in the news.  Millions of religious Christians, and those who exploit their religious beliefs, say every fertilized egg is a sacred life, so, now that we have the unappealable  power to make it law, all must behave accordingly.   Jesus Christ said so, you goddamned sick fucks!  Perfect fascist logic.

There’s an 1873 Supreme Court case, aptly referred to as Slaughterhouse [1], from five years after the 14th Amendment was ratified.   The 14th Amendment was passed to make it illegal for states to deprive anyone born in the US, or naturalized, of the full rights of US citizenship.  If the Constitution gives everyone a right to free speech, freedom of religion, down the non-exhaustive list of enumerated rights the federal government may not infringe, enshrined in the Bill of Rights, no state could abridge these rights either. The first section reads:

‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’   

The Slaughterhouse cases were decided, 5-4, and the majority went out of its way to underscore that the 14th Amendment had been written to protect the rights of newly freed slaves, not a bunch of white butchers.    But while they were elucidating constitutional matters they stopped to draw a sharp, calculated line between the rights of federal citizenship and state citizenship, a line that virtually nullified and struck down enforcement of the 14th Amendment for almost a century.

The court held, 5-4, ignoring the clear intent of the framers (who were all alive to ask) that the rights of federal citizenship were but four: the right to use ports, the right to use navigable interstate waterways, the right to be protected from piracy on the high seas, the right to freely migrate from state to state.  All the rest of the privileges and immunities of citizenship, the one vote majority ruled, was completely up to the states.  States’ rights, you dig.  As a result of this ruling and a few similar ones, no lynching was punished for the next ninety years.  The good old days.

Now today’s strict “textualist” Republican extremists want to cross off one of those four inviolable enumerated rights of federal citizenship. No right to interstate travel for women with a fertilized egg in their womb. Amy Coney Barrett cares so much about the sacred unborn that she will go to the mat for this one!  She will be joined by the Thomases, Alito, Gorsuch, Kavanaugh and possibly a reluctant, but also irrelevant, John “arbitration clause” Roberts.

TPD, yo, provoke it at your peril.

[1]  It arose from a series of cases brought by a group of disgruntled slaughterers contesting Louisiana’s monoply on slaughterhouses.

Ten years later a member of the Slaughterhouse majority, Joseph Bradley, would solemnly opine, in ruling against the Civil Rights Act, that there comes a time when Blacks “cease to be the special favorites of the law” and must be regarded as “ordinary citizens” (though with far fewer rights, obviously).

Hub and spoke conspiracy, DOJ

The J6 committee has been laying out a sprawling conspiracy to overturn the results of the 2020 presidential election, while leaving all other Republicans elected on the same ballots in place. The wide-ranging conspiracy did not culminate in the storming of the capital on January 6th, the riot was a violent Hail Mary when everything else had failed. Trump continually lied (and continues to) about massive voter fraud, pressured state electoral officials from Michigan to decertify Michigan electors. He did this openly and publicly. Slates of fake electors from several states Trump lost were submitted on official looking falsely sworn papers, a plan was hatched to seize voting machines, impose martial law, Sidney Powell was poised to become a special counsel to prosecute voter fraud that didn’t exist in any significant numbers, legal memos were drawn up advocating illegal actions to keep the angry losing candidate in power, actions their author admitted even this supreme Court would rule 9 to 0 against. The head of Trump’s Secret Service detail, a lying scumbag named Tony Ornato, was promoted to Deputy Chief of Staff while still working for the Secret Service which Trump had converted into his personal praetorian guard. Oddly all Secret Service texts from January 5th and 6th have been permanently deleted. In a lucky coincidence for the deranged former president, all of Trump’s phone records and burner phones from those days were also lost. Whoops!

The conspiracy has too many tentacles to list here, but at the center of each one was the personal ambition of one man, Individual One, to do everything imaginable to stay in power after losing an election. This kind of conspiracy, with many arms and many disparate actors who don’t necessarily know each other, all working toward the same goal is called a hub and spoke conspiracy and Glenn Kirschner has been describing exactly this for many months in regard to prosecuting Trump’s many pronged attack on democracy.

Former DOJ prosecutor Andrew Weissmann wrote an op-ed in the New York Times arguing that DOJ must begin a hub and spoke conspiracy investigation and begin prosecuting some of these malefactors, several of which are running for reelection. Should have been done a year ago, but in a couple of months Garland will demure because of the DOJ policy of not interfering with upcoming elections. Here’s Weissmann, explaining why this is not a typical top down pyramid conspiracy simply to storm Congress and Stop the Steal:

Instead, what the hearings have revealed is evidence of a plot orchestrated by Mr. Trump and his allies in the White House and elsewhere — including players from the Mueller investigation like Roger Stone, Michael Flynn and Rudy Giuliani as well as new players like Jeffrey Clark and John Eastman. The “spoke” of the Jan. 6 riot should be seen and investigated simultaneously with the other “spokes”: orchestrating fake electors in key states, pressuring state officials like those in Georgia to find new votes, plotting to behead the leadership of the Justice Department to promote a lackey who would further the conspiracy by announcing a spurious investigation into election fraud, and pressuring Vice President Mike Pence to violate the law.

source

The impartial administration of justice

We jump to conclusions about people’s guilt, sometimes, in spite of our justice system being based on the presumption of innocence.   We jump to these conclusions, in part, because some citizens are presumed much more innocent than others in our impartial justice system.

Just because all of former president Trumpie’s phone records and burner phones from January 6th are lost, and all Secret Service texts from January 5th and 6th were deleted, apparently after they were requested by the Inspector General of the Department of Homeland Security, and just because the former president recently phoned a witness who is about to testify to the J6 Committee, for a reason none of us knows, it doesn’t mean there is anything funny going on.   Trump and his people view the law as a transactional thing which presumes everyone innocent until proven guilty beyond a reasonable doubt.  If there is no trial, there is always reasonable doubt.  If you can influence public opinion and stop the trial before it starts, or work closely with the jury in case, God forbid, there is a trial, you are innocent!

Bernard Kerik, a convicted felon (for crimes committed while Giuliani’s police commissioner) who spent time in the can, was in the January 6th Willard Hotel war room?   He’d been pardoned, washed clean as a newly baptized baby.   So had Flynn, Bannon, Stone, Manafort, Jared’s father, Jack Johnson, Susan B. Anthony and dozens besides.

The AG of Texas, Ken Paxton, has been under federal indictment for felony securities fraud for SEVEN years.  No trial yet, presumed innocent.   Nothing stopped him from using his office to submit a far-fetched emergency legal challenge to the US Supreme Court arguing that the voters in Texas had been victims of massive anti-Trump voter fraud in states that swung to Biden in 2020.  Lyin’ Ted Cruz and other elected Republicans in national office signed on to the Hail Mary case, which was quickly dismissed (for lack of standing or the slightest legal coherence) by even the 6-3 Federalist Society majority.  They clearly had bigger fish to fry, like eliminating privacy rights, which are, like, totally unenumerated in the actual text of their sacred originalist Constitution.

How long ago did the IRS give Trumpie a controversial $70,000,000 tax rebate for massive business losses?  Pretty long ago, they’ve been auditing that giant rebate for years, are apparently still puzzling over it.  Two second search result:

Between 1984 and 2004, he used actual losses, loss write-downs from previous years, and other accounting dodges to pay virtually nothing in federal income taxes. From 2005 to 2007, this latest Times scoop reveals, he did finally pay about seventy million dollars to the Internal Revenue Service. But then, in 2010, he demanded a full refund for those tax payments. And the I.R.S. acceded to his request: it paid him $72.9 million, including interest. This 2010 refund seems to be at the center of an auditing dispute between Trump and the tax authorities that has dragged on for almost a decade. It also appears to be the money that Michael Cohen, Trump’s former personal lawyer, was referring to in his 2019 testimony to Congress, when he recalled Trump showing him a huge check from the U.S. Treasury and remarked that Trump “could not believe how stupid the government was for giving someone like him that much money back.” [1]

https://www.newyorker.com/news/our-columnists/trumps-seventy-three-million-dollar-tax-refund-is-the-biggest-outrage-of-all

Again, if you are powerless, you will immediately be liable to pay in full whatever fines and penalties the IRS imposes.  There is no negotiation, no discussion, no appeal and the fines and penalties continue to be stacked on top until you pay every dime.  If you are a smart cookie like the Orange Polyp?  Hah!  Different story, baby.

Those protesters of police killing of unarmed Blacks, assembled at Lafayette Square?  Terrorists!   The full force of Bill Barr’s ragtag federal law enforcement army forcibly drove them from the street so the president, who was screaming for governors to “dominate the streets!”, could look strong and stroll for a photo op with a bible.  None of the arrested protesters was charged with anything, after being gassed, charged by feds on horseback, handcuffed and thrown into paddy wagons to be dragged in for processing.  The “peaceful tourists” who stormed the Capitol on January 6th, as was their patriotic 1776 right to legitimate political discourse?  Allowed to leave the crime scene in peace, back to their hotels, back to homes all over the country the next day.   800+ were later rounded up and arrested, at the cost of tens of millions in investigation costs and DOJ work hours.  Many of these outraged pawns will spend time in prison, but not one person who sent them into a rage over the bullshit claim that Blacks stole the presidential election from them, incited them to come and be wild, paid for their hotel rooms, is on trial for anything, or even indicted for anything.

The impartial administration of justice at the Department of Justice that Merrick Garland is intent on restoring, almost two years in, after four years of an openly lawless Department of Justice shamelessly carrying out a giant, vindictive two year-old’s every whim?   

(cue the crickets)

[1]

In the late nineteen-eighties and early nineteen-nineties, Trump’s businesses, some of which he had greatly overpaid for when he bought them, racked up more than a billion dollars in losses, and four of them ended up filing for bankruptcy: three casinos in Atlantic City and his Plaza Hotel, in New York. In 1995, as he emerged from this wreckage, he declared a tax loss of more than nine hundred million dollars, which the I.R.S. allowed him to use in subsequent years as an offset against any profits his businesses made. So even in years when the Trump Organization did well, his loss carryovers reduced his tax bill to zero.

source linked above

We waited until you losers lost

Recall that immediately after McConnell, McCarthy, Graham and other top Republicans publicly denounced Trump’s riot on January 6th, Congress went on a brief break.   The House drafted articles of impeachment designed to make sure the insane, riot inciting bastard was disqualified from ever running for president again.   McConnell waited a few days before returning to Washington to accept the articles of impeachment officially, right before Biden was sworn in.

It’s too late, McConnell solemnly argued as the impeachment trial began, Trump has already left office, we can’t impeach a former president, as a procedural matter the charges must be dismissed.   Mueller had concluded after a long investigation that though the evidence of obstruction of justice against Trump was strong, that he was prevented by a DOJ memo from recommending prosecution of a sitting president.  The proper venue for doing that, he wrote, was Congress, which was, sadly, controlled by Trump’s flying monkeys.   McConnell intoned during the quick second impeachment trial that the former president could be investigated, indicted and tried for any crimes he may have committed, now that he’d left office.  After the four day rope-a-dope, Republican senators acquitted Trump on the technicality that the House had not served the articles of impeachment in a timely manner.  More Republicans voted to impeach a Republican president than at any impeachment in US history (generally party line votes) but too few to make sure Trumpie was done, and facing criminal charges as an ordinary corrupt oligarch, or mob boss, in private life might.

It is striking how quickly law enforcement grabs people with no power and how carefully it proceeds against the powerful.  If you are an anonymous driver with a broken tail light, there is reasonable cause to legally pull you over, and if you are not judicious in how you express fear of police who are almost never held accountable for overkill, you can be legally killed, for a variety of standard reasons.   If you are a wealthy white male scofflaw with an army of lawyers, and a political machine behind you, you can enjoy absolute freedom for years before anyone comes looking at you for crimes everyone knows about.

Now, after the most recent J6 hearing, we know why the Stop the Steal January 6 organizers never got a permit for a march from the rally at the Ellipse to the Capitol.  Trump was hiding the planned march so he could argue that it was just a spontaneous outpouring of love for him and the police that sent thousands barrelling down Pennsylvania Avenue to Stop the Steal and hang the disloyal coward Mike Pence so that president pro tem Chuck Grassley could do the right thing and throw the presidential decision to the House, which under a never used rule, could install Trump in spite of his huge electoral loss.  The hundred or so out-numbered police who wound up in the hospital?  Never mind them, the riot was about patriotism, law and order, freedom from tyranny!  As we see time after time, a coherent narrative is unnecessary when passionate feelings are in play.

Notice how none of these people testifying to the January 6th Committee, people who offered damning testimony about the fevered machinations of Trump and several crazy dead-enders plotting to keep the Apprentice star in power after he lost, NOT ONE, came forward while illegal plans were being hatched, during the second impeachment trial or at any time since.  One and a half years later, Patsy Baloney needed public pressure from Liz Cheney and a subpoena to become a frank, candid, supremely careful witness to weeks of Trump’s insane conspiracy theorizing and illegal actions planning.  

True enough some of these shocked patriots, both White House insiders and journalists, published tell-all books, several of them best sellers, which laid out much of the sordid story of an unhinged loser just claiming he won, at the urging of “an apparently inebriated Rudy Giuliani” (one of Liz Cheney’s best lines), Sloppy Steve “Build the Wall scam” Bannon and folks so clearly insane they are now called “the crazies” by “normal” Republicans — traitor Mike “Declare Martial Law” Flynn, clearly mad Sidney Powell, passive, silent, seething Mark “we might be able to stay in power” Meadows, Lin Wood, John Eastman, Jeff “Let me put my pants on” Clark and others.  I saw one, that white mustached asshole John Bolton, another “I told you so” guy who refused to testify, in part because he was paid a large sum to withhold everything he knew about Trump’s madness until publication day, publically venturing his latest opinion of coups d’etat, Trump, the J6 hearings and the hundred failures of Biden.  I declined to watch.

When Trump lost virtually all of the five dozen RNC-financed post election cases his spokes-sphincters claimed the courts had never reached the merits, that all sixty lawsuits were all dismissed for procedural reasons (mostly lack of a scintilla of evidence for any claim).  “If only courts had heard the actual arguments!” they argued.  The actual arguments were so frivolous and weak, and unsupported by credible evidence, that defending herself against strong claims of defamation Sidney “Unleash the Kraken” Powell said nobody in their right mind could have taken any of her legal claims seriously.

Of course not.

Bannon got slapped down in his latest eleventh hour attempt to postpone his contempt trial that starts Monday.  The crime of contempt of Congress was committed, 100%, by a defiant Bannon who is still bravely talking shit, between breaks for actual diarrhea.   The Trump-appointed judge underscored Bannon’s guilt when he agreed with Bannon’s desperate lawyer that since there are no legal defenses for Bannon what is the point of even going to trial?

The question on millions of minds is where is Merrick Garland, as the J6 committee lays out more and more damning evidence, sworn to under oath by hundreds of eye witnesses.   Garland appears regularly defending other DOJ actions, to protect asylum seekers’ rights, to protect school board members threatened by angry Trumpists, to protect LGBTQ persons under attack by new discriminatory state laws, to protect what’s left of a woman’s right to abortion and so on.  Witness tampering? Obstruction of Justice?  Obstructing an official proceeding?  Planning and launching an armed insurrection to overturn the results of a valid election?    Nothing, Dogg? 

GOP an increasingly militant antigovernment party, predating their first insurrectionist president

Today’s J6 Committee hearing really fleshed out the irrefutable (except on an orchestrated procedural technicality) arguments heard at Trump’s second impeachment. In order to support the former president, it is necessary to subscribe to the wild lies of Sidney “no reasonable person would have taken me seriously” Powell, the My Pillow guy, John Eastman, Steve Bannon, Rudy and Mike “I said the Fifth” Flynn.

After decades of determined, organized, well-financed effort to undermine democratic institutions Americans have lost faith in our government to solve problems. This distrust culminated in the presidency of an unhinged idiot performer who plays people around him with a reptilian instinct to win at all costs. Dana Milbank lays out the largely successful GOP effort to activate and weaponize American distrust of the government they systematically disabled.

For three decades, as the Republicans transitioned from a limited-government party to an anti-government party, GOP leaders have seen political advantage in undermining Americans’ confidence in their institutions, and in sabotaging the functions of government. . .

. . . It began with Newt Gingrich’s instructions to Republicans on how to refer to Democrats (and the government) in 1990: “Traitors.” “Corrupt.” “Cheat.” “Decay.” “Failure.” “Incompetent.” “Abuse of power.” As the era of government shutdowns, default brinkmanship, hostage-taking, name-calling and mindless obstruction was just beginning, Vice President Al Gore presciently remarked: “The Republicans are determined to wreck Congress in order to control it — and then to wreck a presidency in order to recapture it.”

McConnell played a major part in the sabotage, and not just with his extravagant intransigence toward legislation and nominees, highlighted by the theft of a Supreme Court seat in 2016.

https://wapo.st/3nXOgPT

State laboratories of autocracy

Because there were stringent laws against lobbyists directly influencing federal legislators with things like lavish vacations, expensive meals. nice gifts and so on, the Koch network focused on state legislators in the various states, since there are no analogous laws about not bribing them. An organization like the American Legislative Exchange Council drafts model laws like Stand Your Ground, that are distributed at legal corporate/legislator party vacations paid for by the dark money donors of ALEC.

Fast forward 40-50 years, and Robert Reich gives you a succinct picture of how American autocrats have seized control of a majority of the state legislatures and a 6-3 anti-democracy Supreme Court that is poised to give Republican state legislatures the unappealable last word on who won the federal elections in their state.