How the US Supreme Court Lost Its Legitimacy

Though Democratic presidential candidates have won the popular vote in every single election since 1992, except one, Republicans have managed to secure a far-right majority on the US Supreme Court. As a result, the Court’s claim to be a neutral, non-partisan arbiter for pressing constitutional questions is quickly losing credibility.

.. the nomination of Brett Kavanaugh to a seat on the Supreme Court marks the culmination of a decades-long campaign by the right-wing Federalist Society to reshape the judiciary. For those devout conservatives and their monied backers, faced with the prospect of massive demographic and generational shifts in the country’s body politic, the strategy has long been to find a way to limit severely access to authentic democratic governance in the United States for generations to come. They now seem on the verge of achieving their goal.

.. since 1988, Republican presidential candidates have won the popular vote in presidential elections – the only consistent measure of national voter intent – just once, when George W. Bush was reelected in 2004 after a period of national unification following the September 11, 2001, terrorist attacks. In every other presidential election (1992, 1996, 2000, 2008, 2012, and 2016), the Democratic candidate won more votes than the Republican candidate.

.. considerable evidence has accumulated that Thomas acceded to that seat by committing perjury during his Senate confirmation hearings.

.. Nine years later, Thomas would go on to join the 5-4 majority in Bush v. Gore, in which the Court ruled that Florida’s 2000 election recount must stop. In doing so, he helped hand the presidency to the son of the man who had appointed him, and denied it to Al Gore, who had won the national popular ballot by more than 500,000 votes.

.. So obtuse was the majority’s written opinion in that case that the ruling actually came with a remarkable disclaimer that it should never be cited as precedent in the future.

.. In 2005, he appointed the current chief justice, John Roberts, to replace William Rehnquist; and in 2006 he appointed Samuel Alito to replace Sandra Day O’Connor.

.. Obama bent over backwards to assuage them, nominating Merrick Garland, the moderate Chief Judge of the US Court of Appeals for the District of Columbia Circuit.

.. Mitch McConnell, succeeded in stymieing the president’s constitutional authority to appoint Supreme Court justices with the “advice and consent” of the Senate.

It bears mentioning that, at this time, the 54 Republicans in the Senate had collectively received 20 million fewer votes than their 46 Democratic colleagues. The Republicans owed their majority strictly to the Senate’s anti-democratic composition, whereby each state is represented by two senators

.. This scheme was one of many concessions made to slave states during the drafting of the Constitution, and with the rise of urbanization, it has come to have an increasingly distortionary effect on American politics. For example, Wyoming’s two senators represent 563,767 people (according to the 2010 census), whereas California’s senators represent 37,254,518.

.. Moreover, Clinton achieved her high popular-vote margin despite widespread voter-disenfranchisement campaigns aimed at Democratic-leaning voters in states controlled by Republicans.

.. In Florida, where elections are regularly notoriously close, more than 1.5 million citizens (over 10% of the state’s total number of adults, and one in five African-Americans) are denied the vote owing to nonviolent criminal convictions, even after they have served their time in prison.

.. Despite having no democratic mandate to speak of, Trump and the Senate Republicans wasted no time in confirming Neil Gorsuch to Garland’s rightful seat on theCourt.

.. Kavanaugh was selected by a president who has been implicated in a felony allegedly committed in pursuit of the office he now holds. That alone calls into question Trump’s legitimacy. But he is also the subject of an unprecedented investigation into his campaign’s possible collusion with a hostile foreign power – an investigation that has already resulted in more than 20 guilty pleas or felony convictions.

.. Kavanaugh, a member of the legal team that persuaded the Supreme Court to hand Bush the presidency in 2000 (thereby hastening the whole grim cavalcade of misbegotten) was most likely selected for his conspicuous support of executive authority in the past. His interpretation of the president’s powers seems to brook no limits, and would likely open the door for Trump to ignore a grand-jury subpoena and even shut down the investigation of his campaign.

.. With his party still enjoying a two-vote (minority-elected) majority in the Senate, McConnell has shown no compunction about ramming Kavanaugh’s dubious nomination through that body. That leaves no alternative but to consider the dire implications of a Supreme Court dominated by the Misbegotten Majority: Thomas, Roberts, Alito, Gorsuch, Kavanaugh. What will this judicial coup mean for reproductive, criminal, labor, and civil rights?

.. More to the point, one of the main threats posed by the new Court is what it will do to voting rights and the laws governing elections – that is, the democratic process itself. Decisions that bear on the outcomes of elections could very well upend the functioning of the other two branches of government, thereby blocking all other possible avenues of redress available within theConstitution’s wider system of checks and balances.

.. Of course, this has been the Republicans’ idea all along. For decades, the Federalist Society, which has overseen all of Trump’s judicial nominations, has understood that cultural and demographic trends are poised to strip the power of its wealthy, predominantly white male sponsors. That cohort is in the process of dying out, and the majority of future voters – and, indeed, current voters, judging by recent popular-vote counts – will be younger, more diverse, more tolerant, and considerably further to the left on economic matters.

To forestall this outcome of democracy, conservatives’ first instinct was to limit the franchise itself. The broad demographic and generational changes underway could be nullified by denying key constituencies the right to vote. And when that wasn’t possible, the next best option was to tamper with electoral outcomes by means of untraceable “dark money” and gerrymandering. The result is that Austin, Texas, one of the most liberal cities in America, is represented in the House of Representatives by four Republicans and just one Democrat; and North Carolina, a state that is evenly divided between Republican and Democratic voters, is represented by ten Republicans and just three Democrats.

.. He was also on board for the decimation of the 1965 Voting Rights Act, which for a half-century had prevented blatant racial discrimination in districts with documented histories of disenfranchising African-Americans and members of other minority groups. And he routinely passed the buck on gerrymandering cases.

.. Citing so-called states’ rights, the Court might start by overturning a recent 3-0 federal circuit court decision ordering North Carolina to redraw its egregiously gerrymandered congressional districts. With that precedent in place, other states will be able to step up their own voter-suppression efforts across the board.

.. For example, some states might decide to deny college students the right to cast absentee ballots, or to vote in jurisdictions where they have not established a permanent residency (or both). Others may think to impose property requirements for voter eligibility, or to “save costs” by shutting down polling stations in, say, Latino neighborhoods.

Still others might require non-drivers to show another form of state-issued identification, which can be acquired only at some remotely located administrative office.

.. retaking the House in 2018 won’t do the Democrats much good as far as the Court is concerned.  All of the constitutional checks on the judiciary rest with the Senate.

..  when it comes to voting rights, gerrymandering, and other election-related cases, he has been one of the justices leading the charge from the right.

.. Whereas Democratic presidents have based their appointments to the Court on merit, Republicans have made a point of selecting younger jurists who will remain on the bench for decades.

.. All of this will be justified on the grounds of “originalism” – the FederalistSociety/Scalia doctrine of sticking to the strict letter of the Constitution as intended (according to them) by its authors at the time of its promulgation. Never mind that in 1787, only propertied men took part in the Constitutional Convention, and that a sizeable plurality were slaveholders zealously guarding their right to treat people like chattel.

..  if individual states try to enact progressive policies on their own, they should be prepared for the Misbegotten Majority suddenly to suspend its much-vaunted devotion to “states’ rights” and strike those down, too. After all, that is the job their sponsors put them there todo. They will not soon forget that they are part of a decades-long project of minority rule.

.. After 2020, more avenues for the proper functioning of checks and balances could open up, especially if the Democrats win the White House and the Senate. Frustrated by their democratically legitimate legislation being scuttled by a misbegotten Court, they could see fit to draft articles of impeachment against Thomas.

.. The journalists Jane Mayer and Jill Abramson have marshaled clear evidence that Thomas lied under oath throughout his confirmation hearing on matters pertaining to his past behavior toward female co-workers and subordinates. And Kavanaugh himself may be facing similar jeopardy with regard to possible perjury in his own confirmation processes.

.. Alternatively, Democrats could pick up where former President Franklin D. Roosevelt left off, by trying to expand the size of the Court, which can be achieved through legislation. But, given the squishiness of swing-state Democrats, a court-packing gambit could fail, as it did with Roosevelt; or, even worse, it could backfire by setting a dangerous precedent for Republicans to follow when they return to power.

..  America would hardly be the first democracy in history to succumb to plutocratic autocracy verging on fascism.

Why Trump Supporters Believe He Is Not Corrupt

What the president’s supporters fear most isn’t the corruption of American law, but the corruption of America’s traditional identity.

On Wednesday morning, the lead story on FoxNews.com was not Michael Cohen’s admission that Donald Trump had instructed him to violate campaign-finance laws by paying hush money to two of Trump’s mistresses. It was the alleged murder of a white Iowa woman, Mollie Tibbetts, by an undocumented Latino immigrant, Cristhian Rivera.

On their face, the two stories have little in common. Fox is simply covering the Iowa murder because it distracts attention from a revelation that makes Trump look bad. But dig deeper and the two stories are connected: They represent competing notions of what corruption is.

.. The Iowa murder, by contrast, signifies the inversion—the corruption—of that “traditional order.” Throughout American history, few notions have been as sacrosanct as the belief that white women must be protected from nonwhite men. By allegedly murdering Tibbetts, Rivera did not merely violate the law. He did something more subversive: He violated America’s traditional racial and sexual norms.
Once you grasp that for Trump and many of his supporters, corruption means less the violation of law than the violation of established hierarchies, their behavior makes more sense. Since 2014, Trump has employed the phrase rule of law nine times in tweets. Seven of them refer to illegal immigration.
.. Why were Trump’s supporters so convinced that Clinton was the more corrupt candidate even as reporters uncovered far more damning evidence about Trump’s foundation than they did about Clinton’s? Likely because Clinton’s candidacy threatened traditional gender roles. For many Americans, female ambition—especially in service of a feminist agenda—in and of itself represents a form of corruption. 
“When female politicians were described as power-seeking,” noted the Yale researchers Victoria Brescoll and Tyler Okimoto in a 2010 study, “participants experienced feelings of moral outrage (i.e., contempt, anger, and/or disgust).”
Cohen’s admission makes it harder for Republicans to claim that Trump didn’t violate the law. But it doesn’t really matter. For many Republicans, Trump remains uncorrupt—indeed, anticorrupt—because what they fear most isn’t the corruption of American law; it’s the corruption of America’s traditional identity. 

Conservatives, Get Real with Yourselves and Denounce Trump’s Attacks on the Press

Defense of the First Amendment is something that conservatives have traditionally bragged about.

The president of the United States thinks “it’s frankly disgusting the way the press is able to write whatever they want to write,” and I think what’s “frankly disgusting” is how many conservatives are defending his comments.

As I stated in my column on Sunday — after President Trump said he wanted “equal time” given to his viewpoint on television programs — I do completely agree that the coverage of this president has been incomparably negative, and often unfairly so. There is a bias; there is a vendetta, and the mainstream media would never subject a liberal politician to this kind of scrutiny. I also, however, explained that none of this matters when it comes to the government’s role in the press.

.. Mr. President: The immense freedom that this country grants to its press is not “disgusting”; it’s beautiful. One of the best things about this country is that our leaders have absolutely no say in our criticism of them, because it’s that freedom that keeps us free.

.. I cannot believe I even have to write this, but “conservative” does not equal “agreeing with the president no matter what he says or does because he won as a Republican.” It’s about a certain set of values and principles, and one of those principles is an unwavering commitment to free speech as guaranteed under the United States Constitution, even and especially when that speech is something controversial.

.. Calling for government control of the media is not a conservative view; it’s a fascist one. You’re fine to think that the government should control the media; you’re fine to espouse it — thanks, of course, to the First Amendment that you’re apparently totally fine with jeopardizing — but please understand that this idea is not compatible with conservative, or even traditionally American, values.

.. They’ll say: “But the media lie! Shouldn’t they be punished for their lies?” Okay, a few things about that. First of all, although the mainstream media are biased, and although journalists have incorrectly reported some things surrounding this administration, President Trump has a penchant for flippantly calling any news he does not like (true or not!) “fake.”

.. Second of all, President Trump himself has lied, misreported, or misrepresented information countless times. Do you think he should be punished, too? Oh, and then there’s this question: Have any media outlets that you do like ever made mistakes or shown a bias? Do you really want to risk putting those outlets in jeopardy by allowing the government to create these kinds of policies, knowing full well that future administrations — potentially, administrations you may not align yourself with — will be able to use those tools as well? Think!

.. First of all, what Antifa did in Berkeley is an unacceptable threat to speech, but Antifa did not take an oath on inauguration day vowing to protect our freedoms, so I think that probably we can hold the person who did do so to a little higher standard than those loons.

.. it is totally possible to disagree with Antifa violence and the president’s comments. It’s called being f&*$%+@ ideologically consistent, and I literally cannot believe that that is some kind of radical concept to so many people whom I know know better.

.. Look in the mirror and say: “It’s 2012. President Obama just threatened to revoke the license of Fox News Channel, and I am totally okay with that,” and see how it feels.

.. What good does this kind of base, childish rhetoric do for any single one of us? We’re all better than this; we’re smarter than this, and we had better get it together before it’s too late.