It’s not hard to imagine a better world than this one. For all its miraculous beauty, all of its amazingly cool life forms, interacting for mutual benefit, all of its potential to be a kind of paradise. I suspect, and every history I read seems to confirm this, that our beautiful planet has always been run for the benefit of the most ruthless and unprincipled among us. It is important to imagine a better world, because commitment to that vision comes before any effective action.

If we had binding ethics rules in the Senate, or House, for example, one member of a committee who stands to profit from defeating legislation that most citizens of the world are in favor of, slowing the devastating warming of our planet, could not block that law because his personal fortune would take a hit. Case in point, filibuster supporter Joe Manchin III, coal profiteer, largest recipient of fossil fuel money in the Senate and chairman of the Senate Committee on Energy and Natural Resources.

The ethical standard for a judge recusing herself from a case is the appearance of a conflict of interest, the appearance of impropriety. Not a provable criminal conflict or some gross impropriety, the appearance of impropriety, anything that would make her appear to favor one side over the other. Why is this not the ethical standard for the Senate or the Supreme Court? Because– eh, FUCK YOU, HOW DARE YOU?!

Ethical behavior has never been a particular strength of the kind of human who craves power over others. Many such people consider themselves selfless public servants, taking one for the team, foregoing the fortune their talent, education and connections would afford them in the free market, and as such, they argue, they must not be subjected to arbitrary ethical rules and certain discipline for violating those rules.

In a more perfect union the judicial system would not allow frivolous cases to drag on for months or years, baselessly running out the clock on various investigations. We learned in law school that you instantly lose your law license if you bring a case without evidence, a frivolous case you have no hope of winning. Frivolous lawsuits are unjust, and hated by ethical judges, because they are calculated only to cause vexation, delay and confusion. They are discouraged because they clog up the justice system with crap lawsuits designed only to vex, delay, intimidate, bankrupt, create public relations campaigns and confuse the public. Yet, of the dozens of frivolous cases brought by an army of die-hard Trumpist lawyers trying to overturn the 2020 presidential election, based on a host of wild conspiracies involving allegations of massive fraud that never occurred, very few of these shysters have been slapped a little bit, forced to pay some legal fees and so on.

Don McGahn, Federalist Society superstar, the man who managed the successful installation of 2/3 of Trump’s majority on the Trump Supreme Court, exploited the crowded federal D.C. docket to drag out a very iffy case for two years– weaponizing the delay to legally dodge a valid subpoena until the damaging testimony he gave against his client, Donald Trump, was a dead letter. You can almost hear the right-wing fuck laughing as he admitted everything years too late to make a difference of any kind, behind closed doors, and not under oath. Powerful insiders play let’s make a deal, while the rest of us must deal with a system that never bends.

I like to think these motherfuckers, the same ilk who were militant in their highly principled, righteous Christian defense of chattel slavery, may be finally overreaching. Charles Koch is an old zombie who has lived to see much of his radical dream play out for America — a nation where those born with incredible wealth are free to amass as much additional wealth as their talents and drive allow, a nation that coerces nobody to give a shit about anybody else, a nation where the government can only force you to do things if you’re a powerless piece of garbage. A transactional nation designed for the well-born to rule as benefits them most.

I like to imagine they have finally over-reached, are miscalculating in their lockstep march behind an increasingly deranged, widely hated front man whose only real talent is stirring rage. By allowing an unconstitutional abortion law to stand in Texas, denying countless poor women of Texas a right guaranteed to them by the Supreme Court because the scheme Texas came up with is a diabolically clever evasion of judicial review — there’s literally nobody to sue to stop it! — these zealot dickheads have finally shown their hideous hand, openly, proudly, the way Charles Koch himself does these days after decades of doing his damage from under a rock.

Recall, the powerful master of the Koch network announced that he would support neither Hillary nor Trump in 2016, until Trump announced that he would put as many of Koch’s Federalist Society vetted picks on to the Supreme Court (and various federal appellate courts) as he was able to.

It is good to imagine that the walls may finally be closing in on these unprincipled, reactionary motherfuckers. Too slowly for my taste, but increasingly, the mountain of evidence already collected and made public has become too high even for modest, mild “institutionalists” like Biden and Merrick Garland to remain silent about. It is not hard to imagine a reckoning, between a legal system rebuilt in 1870, when the Department of Justice was founded to combat the evils of slavery and post-slavery racist terrorism and an incorrigible gang of largely bumbling loyalists ready to use violence on behalf of a megalomaniacal madman to overturn an election he lost, and strongly lied about losing. Trump’s denials of losing the election are as strong as Muhammed bin Salman’s “strong” denials about having Jamal Khasoggi strangled and dismembered, after luring him into the Saudi consulate in Istanbul.

In the battle between a mountain of evidence of crimes and the demand to deem it all fake, I’m still taking the mountain of evidence, even in this weak, teetering democracy we have left. Especially in this weak, teetering democracy we have left.

In this installment of The Scheme (below) Sheldon Whitehouse compares the operation of the right-wing front groups and fake trade associations that promote climate change denial and shows that these are the same groups, funded by the same donors, involved in court capture and other right-wing projects. The larger aim of this network is to end the administrative state by destroying government agencies’ power to regulate business.

Whitehouse continues to lay out the orchestrated cascade of dark money that funds an energetic, litigious web of right-wing activists; groups like the Heritage Foundation, the Cato Institute, the Competitive Enterprise Foundation, Donors’ Capital and Donors’ Trust, the Charles Koch Foundation, the Bradley Foundation, the US Chamber of Commerce. He runs through a few of their wish list items, like the lawsuit, brought on behalf of a paid plaintiff, to attack the constitutionality of Elizabeth Warren’s Federal Consumer Protection Agency.

It is not only a flotilla of coordinated amicus briefs Federalist Society lawyers are submitting to the Federalist Society 6-3 majority on Trump’s Supreme Court, on behalf of various united front groups, it is the lawsuits themselves, selected, as Shelby County v. Holder was, to achieve specific long sought reactionary goals.

To give bolster the illusion that their cases speak for all Americans, there is a women’s front group, the Independent Women’s Forum, funded by dark money, that pops up to present a right-wing free market woman’s point of view in various cases, a recent Second Amendment case, a contraceptive case, a case to limit the Environmental Protection Agency’s authority to regulate greenhouse gases, in the Americans for Prosperity Foundation case that granted a constitutional right to unlimited dark money (signed off on, as Whitehouse says, by the dark-money justices).

Whitehouse ties together cases originating from the U.S. Chamber of Commerce (sudden champion of Climate Science denial) which was, grotesquely enough, the same conservative political outfit that paid for the fucking Powell memorandum, the blueprint for a corporate takeover of the nation, written decades ago. In that memo Powell identified an activist federal judiciary as the key instrument for social, economic and political change, indispensable for kneecapping agency power across the board. Louis Powell, the tobacco lobbying lawyer, became Justice Powell shortly after writing his influential memo for the US Chamber of Congress. Justice Powell, appointed by Nixon, a pox on both of their houses.

This series should be required viewing for every high school and college course in civics and American government.

Senator Sheldon Whitehouse has been laying out, in a now nine part series of presentations in the Senate that he calls the Scheme, the billions spent (tax-deductibly) over the decades by increasingly demanding right-wing billionaires to take over state governments (with organizations like the American Legislative Exchange Counsel — ALEC, authors of Stand Your Ground, anti-mask mandate, voter “integrity” and anti-abortion laws) and capture the federal courts.

Their larger goal is to end all government regulation of business, lower their own taxes, shrink government and enjoy the liberty of a luxurious life without the threat of coercion by a meddling, overeaching government that panders to the “takers”, that undeserving, ever expanding majoritarian tyranny. Their biggest advantage in this fight is an inexhaustible fund of unregulated, untraceable, “dark money”, permitted under the laws that make their political organizations qualify as non-profits. I visited ALEC’s website the other day, and, bingo:

As long as the Supreme Court they have orchestrated into being continues to rule in their favor (and the 6 reactionary majority are all members of the same far-right ideological fraternity, literally, a career-networking frat founded on the 1980s by those same dark money billionaires), they will remain safe from things like “Kamala Harris’s unconstitutional disclosure requirements.”

Imagine the irreparable harm that would be done to America’s greatest political donors if the identity of those secret donors who funded Trump’s $50,000,000 ad buy to promote the lie that Trump was robbed was forcibly unmasked. Those ads worked fabulously, by the way, about 2/3 of Republicans believe there was massive fraud in a bipartisan conspiracy so diabolical that no evidence was ever found!

It’s impossible to hear the “arguments” and read the summary, unsigned 5-4 and 6-3 narrowly ruled partisan decisions from the Trump Supreme Court without suspecting that some kind of fix is in. Here’s Whitehouse on the part of the dark money machine that selects cases the Supreme Court uses to change the laws for decades (like the Shelby County case that overruled a 98-0 Senate vote and set voting rights back fifty years). Their various dark-money funded legal arms submit countless “friend of the court” legal briefs that provide the Gorsuchs, Kavanaughs and Coney-Barretts everything they need to craft facially plausible eye-of-the-needle legal arguments:

What could go wrong? After all, once they throw a coveted chunk of red meat to their religious base by overturning Roe v. Wade, it will only be poor women, and girls without family connections (the bulk of the US plague of maternal and infant mortality deaths anyway), who will suffer the abolition of of this long time woman’s constitutional right. Everyone else can just fly to Switzerland. What’s the problem?

The Federalist Society’s reactionary 6-3 majority gets ready to deliver on some of their radical ideologically-driven promises, after demonstrating their zeal a few times already when they had a 5-4 majority (see examples below). Taking no chances on any of these jurists being “compromisers” of their deeply held, often religiously fervent, beliefs, the 6-3 majority was carefully vetted to avoid what happened when some Republican appointees wound up being amenable to compromise in recent decades. As Ruth Marcus wrote in the Washington Post the other day (all quotes are from that essay, linked below):

. . .[O]ver time, and under the tutelage of the conservative Federalist Society, Republican presidents, beginning with George W. Bush and intensifying with Trump, became better at picking reliably conservative justices. There were to be no more David Souters, who turned out to be a solid liberal vote; no more Sandra Day O’Connors, whose background as an Arizona state legislator often inclined her to compromise; no more Anthony M. Kennedys, the pale-pastel conservative named to the court after Ronald Reagan’s first choice, Robert H. Bork, was resoundingly defeated.

Future justices would have judicial paper trails to provide assurance of their conservative bona fides on everything from explosive social issues to government regulation, a topic important to legal conservatives and their financial backers. And so the post-Rehnquist years produced the Roberts court, adding not only the chief justice but also Samuel A. Alito Jr. and, with Trump’s election and Senate Majority Leader Mitch McConnell’s (R-Ky.) stage-managing, three new conservative justices: Neil M. Gorsuch, Brett M. Kavanaugh and Barrett.

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Even Before McConnell audaciously rammed through a sixth hardcore conservative, a member of a Christian religious cult, for good measure, (a Harvard law professor cited in the article correctly refers to these hardcore “conservatives” as reactionaries, partisan resisters of social change intent on turning the clock back at any price):

The conservative majority notched steady victories. It let federal executions resume for the first time in 17 years. And its decisions dramatically moved the law on religion, simultaneously carving out greater protections for religious freedom and lowering the barrier of separation between church and state. Religious institutions received exemptions from having to comply with anti-discrimination laws, even as states were required to provide equal benefits to religious and secular private schools. In other words, churches could discriminate but could not be discriminated against.

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The Biden administration, after McConnell orchestrated the reactionary 6-3 majority (and recall, the blocked Merrick Garland nomination would have made the court 5-4 the other way), meanwhile waits for a team of legal experts, appointed in April, to issue a report confirming that it is constitutionally permissible to add justices to the Supreme Court (though apparently Biden has no will to do that [1]). The U.S. Constitution gives no set number and there have been different numbers of justices at different times in our history.

Ruth Marcus gives detailed examples of the “nonpartisan” court in action, from an excellent and chilling essay called The Rule of Six: A newly radicalized Supreme Court is poised to reshape the nation recently published in the Washington Post (graciously gifted to you by the supremely generous Jeff Bezos) about what these highly partisan culture warriors are preparing to do, in this term and for as long as they live.

My only problem with Marcus’s essay is her conclusion that rebalancing the court by adding nonpartisan justices is a “remedy worse than the disease.” Her position is that the left (one could say representative democracy itself) has simply been outplayed by canny partisans like Mitch McConnell and Leonard Leo (longtime VP of the Federalist Society who led the well-funded campaigns to support the Supreme Court nominations of John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) who have delivered a solid, carefully vetted, ideologically-driven 6-3 reactionary majority that is now immune to the compromise that rules a 5-4 court.

Marcus seems to urge us all to resignedly strap in for the next thirty years or so as this band of zealous partisans rewrites the Constitution, brazenly, sometimes wildly, for a few generations of unchallengeable right-wing rule. We who are not enthusiastic Trumpists will have to content ourselves with excoriating dissents from the three judge’s powerless to alter any decisions, no matter how wrongly decided.

Here are a few examples from from a long essay, analyzing several grievous decisions by this new 6-3 court, well worth reading.

Months later, with Joe Biden in office, the partisan tinge to the majority’s decision-making became clearer. Having stepped in time and again on behalf of the Trump administration, the court rebuffed a Biden administration request that seemed at least as worthy of emergency intervention. It involved the Trump administration’s Migrant Protection Protocols, better known as the “Remain in Mexico” policy, under which tens of thousands of asylum-seekers had been required to wait across the border, often in squalid and dangerous conditions, as they awaited hearings.

The policy had been put on hold during the pandemic; the Biden administration, on taking office, suspended and ultimately terminated the program. In August, a Trump-appointed district judge in Texas took the extraordinary step of ordering the administration to start it back up. The appeals court declined to intervene. So Biden’s acting solicitor general, Brian H. Fletcher, turned to the justices with an urgent request, arguing that the injunction “imposes a severe and unwarranted burden on Executive authority over immigration policy and foreign affairs.”

The justices had seen this issue before, actually. When immigration rights groups challenged the legality of the Remain in Mexico policy and a different district court judge blocked it from taking effect, the Trump administration raced to the high court seeking a stay. Then, the court, over Sotomayor’s objection, granted the request.

Somehow, when the Biden administration asked for a similar accommodation, none was forthcoming. The trial court order remained in place, over the objections of the three liberal justices. If anything, the interference with presidential prerogative and international relations — ordering a new administration to resume its predecessor’s policy — seemed more severe than when the Trump administration won its stay. It was hard to see what was different here, except that one petitioner was named Trump and the other Biden.

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Here’s another unsettlingly juicy paragraph from the same essay:

The other conservative justices fumed about what they viewed as the court’s disregard for religious rights [during the pandemic], and over the following months their anger only grew, expressed in acerbic dissents. Then Barrett arrived — and with her, a dramatic change in the law, on Nov. 25, 2020, just a month after the Senate voted to confirm her. At issue this time was an executive order issued by New York Gov. Andrew M. Cuomo, imposing strict limits on attendance at religious services in areas of high covid spread.

Now, the conservatives had a new justice on their team and little patience for deference to state officials who seemed to favor acupuncture clinics and laundromats over churches and synagogues. “Even in a pandemic, the Constitution cannot be put away and forgotten,” the five-justice majority wrote in an unsigned opinion. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

The case was striking for the public display of hostilities between Gorsuch and Roberts, an unusual glimpse into the tensions that simmered within the conservative camp as well as the internal sniping about Gorsuch, who had arrived at the court without the deferential demeanor of a junior justice.

In a sneering concurring opinion, Gorsuch took aim at the chief justice’s concurrence in the California case a few months before. “Mistaken from the start,” Gorsuch wrote, and it got uglier from there. The “judicial impulse to stay out of the way in times of crisis … may be understandable or even admirable,” he lectured, but “we may not shelter in place when the Constitution is under attack. Things never go well when we do.”

The chief’s response was subtler but no less acidic, remarkable to those accustomed to Roberts’s generally even, above-the-fray temperament. Gorsuch had taken Roberts to task for having “reached back 100 years” to find a supportive precedent, the court’s 1905 decision in Jacobson v. Massachusetts upholding fines for failing to obtain smallpox vaccine.

In reply, Roberts wrote that Gorsuch was the one who was overreacting to a perfectly logical citation. “While Jacobson occupies three pages of today’s concurrence, it warranted exactly one sentence” in the California case, Roberts wrote. “What did that one sentence say? Only that ‘[o]ur Constitution principally entrusts [t]he safety and the health of the people to the politically accountable officials of the States to guard and protect.’ It is not clear which part of this lone quotation today’s concurrence finds so discomfiting.” This was the judicial equivalent of asking, “What’s your problem, dude?”

Even more than the tensions between the two men, however, the case underscored two new realities on the court. First, Roberts was no longer the pivotal player. He had been outvoted.

Second, this new majority wasn’t about to let prudence get in the way of exercising power. Roberts had voted to leave the New York restrictions in place even though, he said, they “do seem unduly restrictive.” Cuomo had redrawn the affected areas, he noted, so that the churches and synagogues that brought the caseweren’t any longer subject to attendance caps. Therefore, Roberts reasoned, the court had no need to issue “an order telling the Governor not to do what he’s not doing.”

The new majority wasn’t buying it. “The applicants remain under a constant threat,” they said. After all, why put off deciding something until tomorrow if you’ve got the votes today?

And one last, especially chilling and consequential ruling about facially discriminatory state election laws that are “merely” partisan and not provably, intentionally racist (foreshadowing the fate of anything that Congress might theoretically achieve, Manchin, Sinema and 9 Republicans permitting, with the stalled Freedom To Vote Act and the John Lewis Voting Rights Advancement Act):

But if one case from the 2020 term epitomized the brazenness of the new majority, and signaled more to come, it was Brnovich v. Democratic National Committee, decided on the last day of the term. This time, in a case about voting rights, the conservatives were united, with Roberts fully on board.

Since his service as a young lawyer in the Reagan administration, Roberts had been a long-time antagonist of a broad reading of the 1965 Voting Rights Act, which he saw as an affront to states’ rights and an unnecessary artifact of what he views as a bygone era of explicit discrimination.

In 2013, Roberts wrote the 5-to-4 majority opinion in Shelby County v. Holdereviscerating Section 5 of the Voting Rights Act, the critical mechanism that required jurisdictions with a history of voting discrimination to obtain advance approval for voting changes — known as “pre-clearance” — from the Justice Department. For decades, this provision safeguarded the votes of millions of minorities — and drove Republicans in the South and other covered areas to distraction. In Shelby County, Roberts led the charge to neuter the law.

“Our country has changed” since the Voting Rights Act was passed, Roberts proclaimed, with arguably excessive optimism. In any event, he assured anyone who might be concerned, “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in” Section 2.

That would wait for Brnovich. Section 2 allows after-the-fact challenges to changes in voting procedures. In a 1980 decision,the court held that Section 2 applied only to intentional discrimination, not to practices that have the effect of disadvantaging minority voters.

In the aftermath of the 1980 ruling, Congress — yes, it was a different era — passed a new, strengthened version of Section 2 designed to make clear the law barred practices with discriminatory effects, whatever the motive. The new Section 2 prohibited any voting practice that “results in a denial or abridgment of the right … to vote on account of race or color.”

For years, that provision had taken a back seat to Section 5, because pre-clearance wassuch a powerful tool. But in the grim aftermath of Shelby County, voting rights advocates sought to expand the use of Section 2.Advertisement

Brnovich was the high court’s first take on this effort — and it did not go well. The case involved two Arizona voting rules: The first was a state policy that disqualified an entire ballot that wascast in the wrong precinct — even if some parts of the ballot, say for candidates for statewide or federal office, were still valid. The second was a law that made it a crime for most third parties to collect and deliver ballots to election officials — what Republicans pejoratively term “ballot harvesting.”

It was easy to see — if you cared to look — how both rules had a discriminatory impact on minority voters, in particular on Arizona’s population of Native American voters. As Kagan outlined in a scorching dissent, Arizona is a national leader in tossing otherwise valid votes cast in the wrong precinct; in 2012, it accounted for almost 1 in 3 of such discarded ballots, 11 times the rate of the nearest contender, Washington state.

And the Arizona rule clearly operates to disadvantage minority voters. In 2016, Hispanic, Black and Native American voters were twice as likely as Whites to have their ballots discarded. Alito’s majority opinion sniffed that this was no big deal — only a sliver of minority voters’ ballots (around 1 percent) was affected. Kagan: “A rule that throws out, each and every election, thousands of votes cast by minority citizens is a rule that can affect election outcomes. If you were a minority vote suppressor in Arizona or elsewhere, you would want that rule in your bag of tricks.”

The ballot collection rule was even more discriminatory. Most Arizonans vote by mail. But access to mail is severely limited for the state’s Native American voters. Just 18 percent of Native Americans in rural counties have home delivery, compared with 86 percent of White voters in those same counties. Getting to a mailbox or post office can mean a drive of up to two hours. Between a quarter and half of Native American households in these communities lack a car, according to evidence before the court. So relying on third parties to collect and deliver ballots was a regular practice for Native American voters — until Arizona, seizing on the opportunities created by Shelby County and the end of pre-clearance review — made it illegal to do so. Never mind the absence of evidence that the practice resulted in fraudulent votes.

In his opinion for the six-justice majority, Alito grappled with almost none of this. As Kagan pointed out, “Except in a pair of footnotes responding to this dissent, the term ‘Native American’ appears once (count it, once) in the majority’s five-page discussion of Arizona’s ballot-collection ban.”

Yet what was particularly astonishing was the majority’s disregard of its own supposed principles, such as careful adherence to statutory text. Alito didn’t merely ignore Section 2 — he engaged in a total rewrite. He invented new tests, all designed to shrink the reach of the law — a law Congress had already revised to make clear its intent to provide broad coverage crystal clear.

How big was “the burden imposed by a challenged voting rule”? Did the state’s “entire system of voting” provide enough other opportunities to cast a ballot? What about “the strong and entirely legitimate state interest in preventing election fraud”? None of this was in the law.Advertisement

Kagan’s dissent pulsated with fury, justifiably so, over the majority’s blithe abandonment of its professed commitment to textualism. “The language of Section 2 is as broad as broad can be,” she noted.“But the majority today lessens the law — cuts Section 2 down to its own preferred size. … No matter what Congress wanted, the majority has other ideas. This Court has no right to remake Section 2.”

No right, perhaps, but all the power. Not a single conservative justice put a limiting construction on Alito’s destructive interpretation of Section 2. The only concurrence came from an even more conservative direction: Gorsuch, joined by Thomas, wrote to say it wasn’t even clear there was any right for private parties to sue under Section 2 at all.

In the uproar over Alito’s majority opinion, the Gorsuch/Thomas concurrence received little attention, but it was an especially dishonest piece of work. To support its unfounded assertion that “lower courts have treated this as an open question,” the concurrence cited a single appeals court case that merely raised the issue in passing. The case was from 1981, the yearbefore Congress rewrote the law, and in doing so made clear that it allowed private lawsuits. “It is intended that citizens have a private cause of action to enforce their rights under Section 2,” the House report on the law stated.

None of this stopped Gorsuch and Thomas. Theirs was no idle observation — it was a bring-it-on invitation for future mischief-making, part of the broader conservative drive to close off access to the federal courts. The offer was eagerly taken up by Texas not many months later, when private plaintiffs sued to challenge the state’s new voting law.

[1] Ruth Marcus, on Biden’s judicial advisory commission:

{Republican] anxiety was evident as summer turned to fall. As the first Monday in October approached, a remarkable number of justices felt compelled to speak publicly in defense of the institution. Perhaps they were rattled by the Biden administration’s commission on the Supreme Court — even though that panel wasn’t intended to do much more than head off demands from the left for radical changes such as expanding the size of the court. Perhaps the polls got to the justices as well. In July 2020, the court’s approval rating stood at 58 percent in a Gallup poll, the highest in a decade; by the end of September 2021, that had dropped to 40 percent, the lowest since Gallup started testing the question in 2000.

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