The Supreme Court Issue NO ONE Is Talking About

 

John Roberts represented the Chamber of Commerce in private practice.

Before Roberts, the Chamber’s preferred position was chosen 50% of the time.

Under Roberts, 70% of the cases are decided in the Chamber’s favor.

 

Before John Roberts, Lewis Powell represented the Chamber on the Court

Even the “Left-wing” supports the Chamber:

  • 53% Steven Breyer
  • 48% Sonya Sotomayer

 

The corporate media almost never covers these corporate law issues.

They want to distract from the corporate issues with social issues.

Environmental issues (Climate Change) are barely part of the converstation.

This Attorney Took On Chevron. Then Chevron-Linked Judges and Private Prosecutors Had Him Locked Up.

After spending more than 700 days under house arrest, a human rights and environmental lawyer was found guilty last month of criminal contempt in a legal saga that has demonstrated the deep-rooted conflicts of interest layered throughout the judicial system when it comes to climate justice. In Steven Donziger’s conviction, the initial judge who referred him to trial, the second judge who was asked to lead the trial, and the private prosecutors who tried him all had deep ties to Chevron, the company Donziger had won a landmark multibillion-dollar ruling against.

The story began in 2011 when Donziger brought litigation against Texaco (now Chevron) in Ecuador for the harm it caused the Indigenous people in the Ecuadorian Amazon, where the fossil fuel company decided to deliberately discharge 16 billion gallons of toxic waste from its oil sites into rivers, groundwater, and farmland. A refusal from Chevron to adhere to environmental regulations—which earned the company an extra $5 billion over 20 years—led to more than 30,000 Ecuadorians being directly harmed by the oil giant’s actions, the judges in that case found. The case Donziger led made it all the way to the Ecuador Supreme Court, and successfully secured $9.5 billion in environmental damages for the Amazonian communities in a historic climate justice decision.

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In a letter sent to the Administrative Office of the U.S. Courts at the end of last month, Sens. Ed Markey and Sheldon Whitehouse brought into question specifically the use of private prosecutors in the contempt case against Donziger. The three prosecutors that Kaplan appointed, Brian Maloney, Sareen Armani, and Rita Glavin (who is also Andrew Cuomo’s personal lawyer), were all at the time with the law firm Seward & Kissel. That firm had represented Chevron as recently as 2018. “These prosecutions,” the senators wrote, “are highly unusual and can raise concerning questions of fundamental fairness in our criminal justice system.”

Indeed, the apparent conflict of interest the private prosecution had is directly at odds with Supreme Court precedent. In the 1987 decision of Young v. United States ex rel. Vuitton et Fils, the Supreme Court ruled that, when it comes to private prosecutors pursuing criminal contempt cases, they “certainly should be as disinterested as a public prosecutor who undertakes such a prosecution.”

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“Public confidence in the disinterested conduct” of the private prosecutor, the court warned, is essential to maintaining the integrity of the judicial system. That means that even the appearance of interest on the part of the private prosecutor can be considered a violation of Vuitton.

“Appearances are really functionally important for the rule of law, and for our judiciary,” said Guha Krishnamurthi, an associate professor of law at the University of Oklahoma. Krishnamurthi argues that one of the “biggest protections” of the criminal justice system is a disinterested prosecutor who can determine whether or not pursuing a case is to the benefit of the criminal justice system. The fact that a public prosecutor is accountable to the government and to the public, he says, reinforces this protection in a way that private prosecutors do not.

“I think it’s such a clear abuse that it violates the defendant’s constitutional right to due process. You can’t have someone who’s got a conflict of interest, who has personal reasons for wanting to see a person they’re prosecuting convicted,” said Louis Raveson, a professor of law at Rutgers Law School and the founder of the university’s Environmental Law Clinic. “That’s not an appropriate procedure, and, in my view, it’s not a constitutional procedure.”

“This is a perversion of justice, the whole idea that you can have a lawyer who previously worked for Chevron then prosecuting Donziger in the criminal case,” said Martin Garbus, Donziger’s attorney and a prominent veteran of human rights litigation. “It’s clear that it violates the law. … If you look at the body of law that deals with disinterest, people are disqualified for something far, far less than the involvement here.”

Raveson acknowledged that in certain instances, like police brutality cases or other times when the government is being asked to prosecute itself, private prosecutors can be truly beneficial. A private prosecutor there would likely be necessary in order to ensure disinterest and justice, as the public prosecutor works for the government. Often, though, they’re used in cases like Donziger’s, after a disinterested public prosecutor declines to pursue the charge and the judge decides to move forward anyway. “That’s all the more reason that judges need to err on the side of no possibility of a conflict,” Raveson said. Speaking of the Donziger case, he added, “It appears that a conflict is almost inevitable … and clearly that’s not by accident.”

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When it comes to the decisions that could prevent one of the largest climate justice judgments of the past decade from taking effect, such appearances of conflict of interest are incredibly significant—and could be detrimental to future climate justice litigation.

It’s scary going after a large corporation [and] it’s scary going after governments because they have so much power and so much influence that they can do a lot of damage to someone’s life,” Raveson said. “If the lawyers who bring [environmental justice cases like Donziger’s] are subject to biased determinations as to whether or not they should be punished … it’s going to have a deterrent effect on lawyers to bring these kinds of cases.”

Such a deterrence could have massive consequences for the climate, especially at a time when, as this week’s new report from the Intergovernmental Panel on Climate Change showed, the world is barreling further toward climate catastrophe, a crisis that is driven in no small part by fossil fuel companies like Chevron. “It’s up to the judiciary to really ensure that that kind of chilling and deterrence … doesn’t happen,” Krishnamurthi added. “And the way you do that is by having more than just the formality of the rules, [but] having a true fidelity to conflicts of interest and disqualifying where necessary.”

Australia Is Committing Climate Suicide

As record fires rage, the country’s leaders seem intent on sending it to its doom.

Australia today is ground zero for the climate catastrophe. Its glorious

The images of the fires are a cross between “Mad Max” and “On the Beach”: thousands driven onto beaches in a dull orange haze, crowded tableaux of people and animals almost medieval in their strange muteness — half-Bruegel, half-Bosch, ringed by fire, survivors’ faces hidden behind masks and swimming goggles. Day turns to night as smoke extinguishes all light in the horrifying minutes before the red glow announces the imminence of the inferno. Flames leaping 200 feet into the air. Fire tornadoes. Terrified children at the helm of dinghies, piloting away from the flames, refugees in their own country.

The fires have already burned about 14.5 million acres — an area almost as large as West Virginia, more than triple the area destroyed by the 2018 fires in California and six times the size of the 2019 fires in Amazonia. Canberra’s air on New Year’s Day was the most polluted in the world partly because of a plume of fire smoke as wide as Europe.

Scientists estimate that close to half a billion native animals have been killed and fear that some species of animals and plants may have been wiped out completely. Surviving animals are abandoning their young in what is described as mass “starvation events.” At least 18 people are dead and grave fears are held about many more.

All this, and peak fire season is only just beginning.

As I write, a state of emergency has been declared in New South Wales and a state of disaster in Victoria, mass evacuations are taking place, a humanitarian catastrophe is feared, and towns up and down the east coast are surrounded by fires, all transport and most communication links cut, their fate unknown.

An email that the retired engineer Ian Mitchell sent to friends on New Year’s Day from the small northern Victoria community of Gipsy Point speaks for countless Australians at this moment of catastrophe:

“All

we and most of Gipsy Point houses still here as of now. We have 16 people in Gipsy pt.

No power, no phone no chance of anyone arriving for 4 days as all roads blocked. Only satellite email is working We have 2 bigger boats and might be able to get supplies ‘esp fuel at Coota.

We need more able people to defend the town as we are in for bad heat from Friday again. Tucks area will be a problem from today, but trees down on all tracks, and no one to fight it.

We are tired, but ok.

But we are here in 2020!

Love

Us”

The bookstore in the fire-ravaged village of Cobargo, New South Wales, has a new sign outside: “Post-Apocalyptic Fiction has been moved to Current Affairs.

And yet, incredibly, the response of Australia’s leaders to this unprecedented national crisis has been not to defend their country but to defend the coal industry, a big donor to both major parties — as if they were willing the country to its doom. While the fires were exploding in mid-December, the leader of the opposition Labor Party went on a tour of coal mines expressing his unequivocal support for coal exports. The prime minister, the conservative Scott Morrison, went on vacation to Hawaii.

Since 1996 successive conservative Australian governments have successfully fought to subvert international agreements on climate change in defense of the country’s fossil fuel industries. Today, Australia is the world’s largest exporter of both coal and gas. It recently was ranked 57th out of 57 countries on climate-change action.

In no small part Mr. Morrison owes his narrow election victory last year to the coal-mining oligarch Clive Palmer, who formed a puppet party to keep the Labor Party — which had been committed to limited but real climate-change action — out of government. Mr. Palmer’s advertising budget for the campaign was more than double that of the two major parties combined. Mr. Palmer subsequently announced plans to build the biggest coal mine in Australia.

Since Mr. Morrison, an ex-marketing man, was forced to return from his vacation and publicly apologize, he has chosen to spend his time creating feel-good images of himself, posing with cricketers or his family. He is seen far less often at the fires’ front lines, visiting ravaged communities or with survivors. Mr. Morrison has tried to present the fires as catastrophe-as-usual, nothing out of the ordinary.

This posture seems to be a chilling political calculation: With no effective opposition from a Labor Party reeling from its election loss and with media dominated by Rupert Murdoch — 58 percent of daily newspaper circulation — firmly behind his climate denialism, Mr. Morrison appears to hope that he will prevail as long as he doesn’t acknowledge the magnitude of the disaster engulfing Australia.

Mr. Morrison made his name as immigration minister, perfecting the cruelty of a policy that interns refugees in hellish Pacific-island camps, and seems indifferent to human suffering. Now his government has taken a disturbing authoritarian turn, cracking down on unions, civic organizations and journalists. Under legislation pending in Tasmania, and expected to be copied across Australia, environmental protesters now face up to 21 years in jail for demonstrating.

“Australia is a burning nation led by cowards,” wrote the leading broadcaster Hugh Riminton, speaking for many. To which he might have added “idiots,” after Deputy Prime Minister Michael McCormack blamed the fires on exploding horse manure.

Such are those who would open the gates of hell and lead a nation to commit climate suicide.

More than one-third of Australians are estimated to be affected by the fires. By a significant and increasing majority, Australians want action on climate change, and they are now asking questions about the growing gap between the Morrison government’s ideological fantasies and the reality of a dried-out, rapidly heating, burning Australia.

The situation is eerily reminiscent of the Soviet Union in the 1980s, when the ruling apparatchiks were all-powerful but losing the fundamental, moral legitimacy to govern. In Australia today, a political establishment, grown sclerotic and demented on its own fantasies, is facing a monstrous reality which it has neither the ability nor the will to confront.

Mr. Morrison may have a massive propaganda machine in the Murdoch press and no opposition, but his moral authority is bleeding away by the hour. On Thursday, after walking away from a pregnant woman asking for help, he was forced to flee the angry, heckling residents of a burned-out town. A local conservative politician described his own leader’s humiliation as “the welcome he probably deserved.”

As Mikhail Gorbachev, the last Soviet leader, once observed, the collapse of the Soviet Union began with the nuclear disaster at Chernobyl in 1986. In the wake of that catastrophe, “the system as we knew it became untenable,” he wrote in 2006. Could it be that the immense, still-unfolding tragedy of the Australian fires may yet prove to be the Chernobyl of climate crisis?

Republicans Don’t Believe in Democracy

Do Democrats understand what they’re facing?

Item: Last week Republicans in the North Carolina House used the occasion of 9/11 to call a surprise votepassing a budget bill with a supermajority to override the Democratic governor’s veto. They were able to do this only because most Democrats were absent, some of them attending commemorative events; the Democratic leader had advised members that they didn’t need to be present because, he says, he was assured there would be no votes that morning.

Item: Also last week, Representative Adam Schiff, the Democratic chairman of the House Intelligence Committee, issued a subpoena to the acting director of national intelligence, who has refused to turn over a whistle-blower complaint that the intelligence community’s inspector general found credible and of “urgent concern.” We don’t know what the whistle-blower was warning about, but we do know that the law is clear: Such complaints must be referred to Congress, no exceptions allowed.

On the surface, these stories may seem to be about very different things. The fight in North Carolina is basically about the G.O.P.’s determination to deny health care to low-income Americans; the governor had threatened to veto any budget that didn’t expand Medicaid. The whistle-blower affair probably involves malfeasance by high government officials, quite possibly President Trump, that in some way threatens national security.

What the stories have in common, however, is that they illustrate contempt for democracy and constitutional government. Elections are supposed to have consequences, conveying power to the winners. But when Democrats win an election, the modern G.O.P. does its best to negate the results, flouting norms and, if necessary, the law to carry on as if the voters hadn’t spoken.

Similarly, last year America’s voters chose to give Democrats control of the House of Representatives. This still leaves Democrats without the ability to pass legislation, since Republicans control the Senate and the White House. But the House, by law, has important additional powers — the right to be informed of what’s going on in the executive branch, such as complaints by whistle-blowers, and the right to issue subpoenas demanding information relevant to governing.

The Trump administration, however, has evidently decided that none of that matters. So what if Democrats demand information they’re legally entitled to? So what if they issue subpoenas? After all, law enforcement has to be carried out by the Justice Department — and under William Barr, Justice has effectively become just another arm of the G.O.P.

This is the context in which you want to think about the latest round of revelations about Brett Kavanaugh.

First of all, we now know that the F.B.I., essentially at Republican direction, severely limited its investigation into Kavanaugh’s past. So Kavanaugh was appointed to a powerful, lifetime position without a true vetting.

Second, both Kavanaugh’s background and the circumstances of his appointment suggest that Mitch McConnell went to unprecedented lengths to create a Republican bloc on the Supreme Court that will thwart anything and everything Democrats try to accomplish, even if they do manage to take both Congress and the White House. In particular, as The Washington Post’s Greg Sargent notes, it seems extremely likely that this court will block any meaningful action on climate change.

What can Democrats do about this situation? They need to win elections, but all too often that won’t be sufficient, because they confront a Republican Party that at a basic level doesn’t accept their right to govern, never mind what the voters say. So winning isn’t enough; they also have to be prepared for that confrontation.

And surely the first step is recognizing the problem exists. Which brings me to the Democratic presidential primary race.

The leading candidates for the Democratic nomination differ considerably in both their personalities and their policy proposals, but these pale beside their differences from Donald Trump and his party. All of them are decent human beings; all would, if given the chance, move America in a notably more progressive direction.

The real chasm between the candidates is, instead, in the extent to which they get it — that is, the extent to which they understand what they’re facing in the modern G.O.P.

The big problem with Joe Biden, still the front-runner, is that he obviously doesn’t get it. He’s made it clear on many occasions that he considers Trump an aberration and believes that he could have productive, amicable relations with Republicans once Trump is gone.

Which raises the question: Even if Biden can win, is he too oblivious to govern effectively?