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.
The Supreme Court Gaslights Its Way to the End of Roe
There are many reasons for dismay over the Supreme Court argument in the Mississippi abortion case, but it was the nonstop gaslighting that really got to me.
First there was Justice Clarence Thomas, pretending by his questions actually to be interested in how the Constitution might be interpreted to provide for the right to abortion, a right he has denounced and schemed to overturn since professing to the Senate Judiciary Committee 30 years ago that he never even thought about the matter.
Then there was Chief Justice John Roberts, mischaracterizing an internal memo that Justice Harry Blackmun wrote to his colleagues as the Roe v. Wade majority was discussing how best to structure the opinion Justice Blackmun was working on. The chief justice was trying to delegitimize the place of fetal viability in the court’s abortion jurisprudence, where for nearly 50 years, viability has been the unbreached firewall protecting the right of a woman to choose to terminate a pregnancy.
“It’s an unfortunate source, but it’s there,” he said, referring to Justice Blackmun’s papers, on file and open to the public at the Library of Congress. “In his papers, Justice Blackmun said that the viability line was — actually was dicta.”
“Dicta” is a dismissive word that refers to asides in an opinion that are not actually part of the court’s holding. The entry in the Blackmun papers to which the chief justice was most likely referring was a memo of Nov. 21, 1972 that the author of Roe v. Wade sent along with a new draft opinion to the other justices, noting: “In its present form it contains dictum but I suspect that in this area some dictum is indicated and not to be avoided.”
In that memo, of course referring to what was still a work in progress, Justice Blackmun proposed that the right to abortion be fully protected only until the end of the first trimester of pregnancy. “This is arbitrary,” he wrote, “but perhaps any other selected point, such as quickening or viability, is equally arbitrary.”
But two weeks later, after consulting with other justices, including Lewis Powell and Thurgood Marshall, Justice Blackmun circulated another memo endorsing the viability line. Far from describing this determination as arbitrary, he wrote in a memo dated Dec. 11, 1972, that viability “has logical and biological justifications,” namely, that “few could argue, or would argue, that a state’s interest by the time of viability, when independent life is presumably possible, is not sufficiently developed to justify appropriate regulation.”
In other words, by the time the court issued the final opinion in January 1973, viability was not dicta but rather an essential element of the decision. Chief Justice Roberts may not like viability — as clearly he doesn’t, observing to Julie Rikelman, the lawyer for the Mississippi clinic challenging the state’s ban on abortion after 15 weeks of pregnancy, that “viability, it seems to me, doesn’t have anything to do with choice” — but he was flatly wrong to suggest that it was an unconsidered aspect of Roe v. Wade.
(And of course it is extremely odd for a Supreme Court justice to dig into the court’s private work papers to cast aspersions on a published opinion.)
In fact, as the second Blackmun memo makes clear, the court that decided Roe saw a direct link between the viability line and a woman’s ability to choose abortion. In that second memo, Justice Blackmun referred to the “practical aspect” of the viability line, observing that “there are many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed.”
And then there was Justice Brett Kavanaugh, who rattled off a list of “the most consequential cases in this court’s history” that resulted from overruling prior decisions. If the court had adhered, for example, to the separate-but-equal doctrine of Plessy v. Ferguson rather than overruling that precedent in Brown v. Board of Education “the country would be a much different place,” he told Ms. Rikelman. “I assume you agree with most, if not all, the cases I listed there, where the court overruled the precedent,” Justice Kavanaugh continued. Why then, he asked, should the court stick with a case it now regarded as wrongly decided?
More gaslighting: The superficial plausibility of Justice Kavanaugh’s analogy between Plessy v. Ferguson and Roe v. Wade dissolves with a second’s contemplation. For one thing, Plessy negated individual liberty, while Roe expanded it. For another, Justice Kavanaugh’s list could have been 1,000 cases long without casting any light on whether today’s Supreme Court should repudiate Roe v. Wade.
But the justice’s goal was not to invite contemplation. It was to normalize the deeply abnormal scene playing out in the courtroom. President Donald Trump vowed to end the right to abortion, and the three justices he put on the court — Neil Gorsuch, to a seat that was not legitimately Mr. Trump’s to fill; Amy Coney Barrett, whose election-eve nomination and confirmation broke long settled norms; and Justice Kavanaugh — appear determined to do just that.
It was Justice Sonia Sotomayor who asked the uncomfortable question. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she demanded of Scott Stewart, a former law clerk to Justice Thomas who argued for Mississippi as the state’s solicitor general. Listening to the live-streamed argument, I first heard “political acts” as “political hacks,” I suppose because still in my mind were Justice Barrett’s words when she spoke in mid-September at a center in Louisville, Ky., named for her Senate confirmation mastermind, Senator Mitch McConnell. “My goal today is to convince you that the court is not comprised of a bunch of partisan hacks,” she said then.
Justice Barrett’s performance during Wednesday’s argument was beyond head-spinning. Addressing both Ms. Rikelman and Elizabeth Prelogar, the U.S. solicitor general who argued for the United States on behalf of the Mississippi clinic, Justice Barrett asked about “safe haven” laws that permit women to drop off their unwanted newborn babies at police stations or fire houses; the mothers’ parental rights are then terminated without further legal consequences. If the problem with “forced motherhood” was that it would “hinder women’s access to the workplace and to equal opportunities,” Justice Barrett asked, “why don’t safe haven laws take care of that problem?”
She continued: “It seems to me that it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.”
I’ll pass over the startling notion that being required to accept a vaccine is equivalent to being forced to carry a pregnancy to term. “Gaslighting” doesn’t adequately describe the essence of what Justice Barrett was suggesting: that the right to abortion really isn’t necessary because any woman who doesn’t want to be a mother can just hand her full-term baby over to the nearest police officer and be done with the whole business. As Justice Barrett, of all people, surely understands, such a woman will forever be exactly what she didn’t want to be: a mother, albeit one stripped of her ability to make a different choice.
I will give the gaslighting prize to Justice Kavanaugh and his suggestion that the court should simply adopt a position of “neutrality” with respect to abortion. Abortion is a contentious issue with important interests on both sides, he said to Solicitor General Prelogar. “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” he said. “And there will be different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”
Justice Kavanaugh painted a soothing description of a down-the-middle resolution, but Solicitor General Prelogar, for one, wasn’t fooled. “The nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them or not,” she responded.
Can Justice Kavanaugh really believe what he said? We’ll see soon enough. Last month, the court heard arguments in a case that challenges New York’s strict requirement for a license to carry a concealed weapon. Most states have looser restrictions. New York, through its legislative process, is in a minority.
Will Justice Kavanaugh and those of his colleagues who glorify a recently manufactured version of the Second Amendment allow New York City to keep going its own way on gun safety in the name of “letting the people decide”? That’s about as likely as the chance that those very same justices will decide to keep the right to abortion on the books. In both cases, we know what they’re going to do. The only mystery is how they will explain it.
How Amy Coney Barrett played a role in Bush v. Gore — and helped the Republican Party defend mail ballots
At issue were thousands of absentee ballot request forms in Martin County — just north of Palm Beach County, home of the notorious “butterfly ballot” — that had missing voter registration information.
After county officials allowed the GOP to take the forms back and fill in the missing information, a Democratic voter sued, saying ballots cast by those voters should be tossed out. The county canvassing board, the Florida Republican Party and the Bush campaign argued that the votes should still count.
Barrett’s work on the case serves as a reminder of how aggressively the Republican Party has sought to harness mail voting for years, in contrast to President Trump’s relentless attacks on the practice.
This year, the Trump campaign and Republicans in Iowa have pushed to invalidate tens of thousands of absentee ballot applications with missing information that had been filled in by county officials.
“It’s the very antithesis of what we were arguing to the courts back then,” said Daryl Bristow, who represented the Bush campaign in the Martin County absentee ballot case and a related suit in nearby Seminole County. “We were trying to keep voters from being disenfranchised.”
As both parties brace for the possibility of another contested election that Trump has suggested could go to the high court, the previously unreported role of his Supreme Court nominee in the absentee ballot fight is more than a historical footnote. Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh also played a role in Bush v. Gore — meaning that if Barrett is confirmed, three of the nine justices will have participated in litigation related to the only presidential contest to be decided by the high court.
“Here we are, two decades after Bush v. Gore, and it’s as if it was yesterday,” said Daniel Smith, a University of Florida political science professor. “It divided the nation 20 years ago, and it’s amazing how it continues to be a specter in national politics.”
In the U.S. Senate questionnaire she submitted late last month, Barrett said she spent a week in Florida contributing research and briefing assistance on Bush v. Gore, but provided no specifics. Court records show that she is on the list of lawyers who were served with filings in the Martin County case, indicating her involvement in that suit.
Barrett did not respond to a request for comment made through the White House and has not publicly discussed her precise duties in the Martin County case. In her Senate questionnaire, she said she worked in Florida with Stuart Levey, a partner in the Washington law firm Miller, Cassidy, Larroca & Lewin, who was part of the Bush team battling to keep the Republican mail votes. (Miller Cassidy merged with the venerable firm Baker Botts the following year.)
Levey declined to comment.
First in her law school class at Notre Dame and a former clerk for Supreme Court justice Antonin Scalia, Barrett fit the profile of the kind of up-and-coming conservative lawyer the Republican Party recruited to parachute into Florida to help in the hotly contested recount.
Amy Douthit Maddux, a junior lawyer on the Bush team who remembers communicating with another lawyer named Amy on the case, said, “It was just exciting to be able to work on something of such importance as a very young lawyer, and given the speed with which things were happening, everyone was relied upon.”
The Martin County plaintiff, Ronald Taylor, was seeking to capitalize on a glitch in the state Republican Party’s absentee ballot program.
Request forms sent by the party to Republican voters mistakenly omitted their voter registration numbers, leading those requests to be set aside by the Martin County elections office. The county elections supervisor allowed a local Republican Party official to take the incomplete request forms, add the missing numbers and return them the following day, according to court filings. GOP voters who had used the request forms to seek absentee ballots were then able to receive them.
The Democratic plaintiff argued those votes were tainted. “It was a sinister underground conspiracy,” argued his attorney Edward Stafman, according to newspaper accounts.
Along with the similar lawsuit in nearby Seminole County, Democrats were trying to nix roughly 25,000 absentee votes in a contest in which Bush was leading by 537 votes.
Back-to-back trials were held in Leon County Circuit Court in Tallahassee. The judges issued a joint statement: “Despite irregularities in the requests for absentee ballots, neither the sanctity of the ballots nor the integrity of the election has been compromised, and . . . the election results reflect a full and fair expression of the will of the voters.”
Democratic presidential nominee Al Gore, whose campaign was making the case that every vote must be counted, did not join the lawsuits.
“It tells you that sometimes what goes around comes around,” said veteran GOP election lawyer Benjamin L. Ginsberg, who served as national counsel for the Bush campaign, and noted that Democrats this year are fighting to expand which mail ballots are counted. “You have to admire the irony of the moment since that is not consistent with the position [Democrats are] taking now.”
The Martin and Seminole County plaintiffs immediately appealed to the Florida Supreme Court as the clock ticked toward the deadline for the state to appoint its 25 presidential electors. “It was a crazy, crazy kind of schedule,” said Mark Miller, then a colleague of Barrett, who recalled scrambling with her from Washington to Orlando to assist the Bush campaign.
The same day the U.S. Supreme Court essentially handed the election to Bush by putting a stop to manual recounts in the state, the Florida Supreme Court upheld the trial court’s decision in the Martin and Seminole County cases.
“It was a no-brainer on the law,” Maddux said. “There was no proof anywhere that the people who voted should not have voted. But they were important cases because had it gone south, it would have been enough to change the results.”
Along with young lawyers like Barrett, the GOP pulled in seasoned constitutional experts for help in Florida.
Roberts, a then 45-year-old who had worked in the White House and argued dozens of cases before the U.S. Supreme Court as a partner in a Washington law firm, was summoned to Tallahassee to advise the Bush campaign and prep a lawyer appearing before the Florida Supreme Court.
That lawyer was Michael Carvin, a Washington-based voting rights expert, who said Roberts’ legal skills and grasp of constitutional issues were prized in the early weeks of the election dispute.
The Bush campaign was opposing Democratic efforts to extend the recount in Palm Beach County and arguing that the Florida secretary of state had the authority to declare a winner seven days after the election. Lawyers hunkered down at the Republican Party’s headquarters in Tallahassee worked frantically to submit the brief to the Florida Supreme Court on a Sunday evening. “It was bedlam,” Carvin recalled.
To prepare for court the next day, Carvin, Roberts and a handful of others adjourned to attorney Barry Richards’s Tallahassee law office. In the relative quiet of a conference room, Roberts helped Carvin hone his responses to questions he expected from the state court judges, Carvin recalled.
“It wasn’t brain surgery,” he said, adding that the legal issues were straightforward. But he said having Roberts on hand was helpful not only for that moment, but in anticipating future legal developments.
Carvin said he and Roberts correctly guessed that Bush would lose that state court skirmish over the Palm Beach County recount. But while preparing for that battle, they developed a strategy that would raise the federal issues that would assure a later review by the U.S. Supreme Court, he said.
Roberts returned to Tallahassee in December to offer counsel to then-Gov. Jeb Bush, who was in the crosshairs as his brother’s leading campaign surrogate and the chief executive of a state facing an election meltdown.
In an email to The Washington Post, Bush said he had asked his top legal advisers “to find the best constitutional lawyers to brief me on my Constitutional duties as Governor . . . I recused myself from responsibilities regarding state law but I had ministerial duties I wanted to do correctly.”
Frank Jimenez, then acting general counsel to Gov. Bush, said he recommended Roberts on a suggestion from Dean Colson, a prominent Miami lawyer who had co-clerked with Roberts for Supreme Court Justice William H. Rehnquist. The night before the appointment with Bush, Jimenez, a son of Cuban immigrants, took Roberts to Carlos’ Cuban Cafe in Tallahassee for dinner.
During their hour-long meeting, Roberts and Bush discussed two election-related documents the governor needed to sign and send to the National Archives, Jimenez said.
“Thank you for your time today. I really appreciate your input on my role in this unique and historic situation,” Bush said in an email to Roberts released shortly before the governor’s presidential campaign launch in 2015.
In contrast to Roberts and Barrett, who worked quietly behind the scenes in Florida, Kavanaugh was out in public on behalf of the Bush campaign.
Then a 35-year-old partner at one of the nation’s largest law firms and battle-tested from working with independent counsel Ken Starr to investigate President Bill Clinton, he went to Democratic-leaning Volusia County in central Florida to help oversee a manual recount of roughly 200,000 ballots, according to Kavanaugh’s Senate questionnaire. He had been serving as a regional coordinator for the Bush campaign’s coalition of legal supporters.
Unlike in South Florida, where punchcard ballots led to the much-maligned hanging chads, Volusia County used optical scan ballots. Kavanaugh helped direct the Republican strategy of closely scrutinizing ballots where voters had failed to properly fill in the bubble next to a candidate’s name, said Shannen Coffin, another Republican attorney on the ground in Volusia.
“Brett was kind of the guy we looked up to,” said Coffin, who later served as counsel to Vice President Richard B. Cheney. “If there was an irregularity in the recount process, he wanted it documented. It was a zealous representation of a client, but not a win-at-any-cost strategy.”
Weeks later, Kavanaugh delivered legal analysis on national television outside the U.S. Supreme Court on the eve of the momentous decision that ended the election morass. He would go on to serve as associate counsel to the new president.
“I think what we are seeing is more of a divide over how to interpret the Constitution than really political differences,” Kavanaugh said in the interview with CNN’s Wolf Blitzer. “I don’t think the justices care that it’s Bush versus Gore or if it were Gore versus Bush. What they care about is how to interpret the Constitution, what are the enduring values that are going to stand a generation from now.”
If the Supreme Court Won’t Prevent Gerrymandering, Who Will?
A progressive take on states’ rights can come to the rescue.
Progressives have long looked to federal courts to guard the rights of racial minorities and dissenters. But that protection is weakening. Faced with the enormous injustice of partisan gerrymandering, the Supreme Court last month permitted politicians drawing election district maps to discriminate by party and even potentially mask their racial “packing” and “cracking” as mere partisanship. To fill this growing gap, reformers should take an unexpected route: states’ rights.
Chief Justice John Roberts wrote an opinion that allowed two gerrymanders, one committed by Republicans in North Carolina and one by Democrats in Maryland, to stand. His reason? He could not find a standard to judge when an offense had occurred. He rejected a considerable body of empirical research, including suggestions by my colleagues and me in an amicus brief.
Federalism, in which regional governments retain considerable power, has been invoked in the past to take away representational rights. But a local approach, properly applied, can also restore them. In a stinging dissent, Justice Elena Kagan pointed out that where the Supreme Court had failed to define and regulate partisan gerrymandering, four lower federal courts had succeeded.
State courts can do so, too — without federal approval. The elections clause of the Constitution gives states broad authority over redistricting as long as the actions do not run afoul of federal law. Chief Justice Roberts conceded that states can act on their own by “actively addressing the issue through state constitutional amendments and legislation.” Now that Republicans and their designates control the Supreme Court, the Senate and the presidency, reformers should embrace what Heather K. Gerken, the dean of Yale Law School, calls “progressive federalism.”
The Princeton Gerrymandering Project, which I founded, has investigated federalist approaches to redistricting reform. We found 27 instances in which a district map was overturned on the basis of state law. Recently, Pennsylvania’s Supreme Court overturned an unfair congressional map, citing the state Constitution’s free and equal elections clause, a phrase that is also found in 27 other state Constitutions.
And 47 Constitutions prohibit government discrimination based on political viewpoint, a principle also found in the First Amendment, which Justice Kagan has argued should protect partisan voters. Drawing a district’s boundaries to dilute a voter’s influence violates the principle of equal protection under the law as found in the 14th Amendment — and in 24 state Constitutions.
The use of federalism to protect voter rights will be tested in a trial this month in North Carolina, where General Assembly districts are being challenged as a partisan gerrymander. Since North Carolina law does not require the governor’s approval for maps, state court may be voters’ best and last chance at fair districts there.
Proving the case should be straightforward. Computer simulations can quickly explore thousands of alternatives to determine whether a map is an extreme partisan outlier. For example, in the Supreme Court case, which concerned a congressional map, Jonathan Mattingly, an expert witness, demonstrated that one congressional districting plan was more extreme than more than 99 percent of over 24,000 possible alternatives that honor city and county boundaries. Simpler mathematical formulas, which detect inequities of opportunity and outcome, can also help diagnose astate legislative map as extreme.
These technologies will soon be within reach of nearly everyone. Thomas Hofeller, a redistricting expert who died recently, drew North Carolina’s gerrymander. He was a Picasso of partisan maps. But thanks to data-sharing projects like OpenPrecincts and the Public Mapping Project, as well as free software like Dave’s Redistricting and PlanScore, citizens in every state will be able to draw their own maps — and expose partisan malfeasance the moment it emerges.
Federalism can also be imposed by voters directly. In 2018, redistricting reform initiatives passed in Colorado, Michigan, Missouri and Utah. These reforms earned 8 to 19 percentage points more support than the Democratic vote share in statewide races, showing that reform has bipartisan support.
The Colorado and Michigan initiatives establish independent redistricting commissions, in which passing a plan requires votes from independents or members of both parties. The political scientist Alex Keena and collaborators have shown that independently drawn maps are more balanced than maps drawn by either party alone. These commissions can also ensure representation for racial minorities and other communities. Citizens can change the law in the 24 states that allow voter-initiated ballot measures, and local reformers are now working to qualify such a measure for the ballot in Arkansas.
The spoils from gerrymandering are enormous. After a wave election in 2010 favoring Republicans, Republican-drawn gerrymanders in 10 states tilted the balance of power in Congress by nearly 20 seats, a modern high, and took hundreds of legislative seats out of contention.
With increased local power in the redistricting cycle of 2021, Democrats may be tempted to play tit-for-tat, imposing their own gerrymanders. But a proposed constitutional amendment that would have insulated Democrats from voters failed in New Jersey, in part because of popular anger. Rather than reducing electoral competition further, Democrats should seek representational balance by taking the high road of reform. They would be in step with over 70 percent of Americans who agree that gerrymandering should be curbed.
In states without the initiative process, legislators themselves will occasionally agree to give up power. The New Hampshire legislature has sent a reform bill to Gov. Chris Sununu. The Virginia legislature is considering a constitutional amendment for the 2020 ballot, though perhaps not entirely out of altruism: The current Republican majority may lose seats and fall victim to a future Democratic gerrymander.
A final route to reform uses the governor’s veto to check legislatures. Maryland has a Republican governor, counterbalancing the Democratic legislature. Wisconsin, site of one of the most extreme Republican gerrymanders in the nation, now has a Democratic governor. Depending on three competitive governors’ races this November, bipartisan control may spread to Kentucky, Louisiana and Mississippi.
Putting all federalist routes together — courts, voter initiatives, laws and elections — I estimate that reform is actually possible in the vast majority of states, even without the Supreme Court’s help.
In biological systems, my other area of expertise, self-correction prevents living systems from going off-kilter. If we don’t sweat, we overheat. When cells disregard the boundaries of the organ where they belong, the result is cancer. So too in democracy: Without a mechanism to ensure fair districts, a political party can ensconce itself in power indefinitely. By introducing self-correction mechanisms, we can reverse the erosion of faith in democracy that comes from gerrymandering.