Krystal delivers updates about a major Supreme Court ruling for wall street that nobody is talking about.
BREAKING: Trump’s lawyer just had a DELUSIONAL reaction to the bombshell Supreme Court ruling against Trump.
Amy Coney Barrett, whom President Trump has nominated to replace Ruth Bader Ginsburg on the Supreme Court, was born in 1972, so she can expect to spend several decades shaping both American law and American life. As it happens, a year before Barrett’s birth, Lewis F. Powell, Jr., then a prominent lawyer in Richmond, Virginia, and later a Supreme Court Justice himself, wrote a now famous memorandum to the United States Chamber of Commerce, arguing that businesses needed to take a more aggressive hand in shaping public policy. “The American economic system is under broad attack,” he wrote, from, specifically, the consumer, environmental, and labor movements. He added that “the campus is the single most dynamic source” of that attack. To counter it, Powell suggested that business interests should make a major financial commitment to shaping universities, so that the “bright young men” of tomorrow would hear messages of support for the free-enterprise system. A little less than a decade later, a pair of law professors named Robert Bork and Antonin Scalia signed on as the first faculty advisers to a fledgling organization for conservative law students called the Federalist Society for Law and Public Policy Studies. The efforts of the Federalist Society were lavishly funded by the business interests invoked by Powell, and it has trained a generation or two of future leaders. Not all of them have been “bright young men.” Some are women, including Barrett, and her confirmation would vindicate Powell’s plan and transform the Supreme Court.
Barrett made an appealing first impression in 2017, during her confirmation hearings to the federal bench. She and her husband are the parents of seven children. For many years, she was a popular professor at Notre Dame Law School, which she also attended and from which she graduated summa cum laude. She clerked on the Supreme Court for Justice Scalia. As a judge on the Seventh Circuit, she has been a reliable conservative voice. Even liberal peers in the academy find her personable. She will probably do well in providing the artful non-answers that are the currency of Supreme Court confirmation hearings before the Senate Judiciary Committee, just as she did in 2017.
But there should be no doubt about why Barrett has been chosen. Much of the commentary about her selection will focus on the issue of abortion, and her likely role in overturning Roe v. Wade. During the 2016 campaign, Trump repeatedly promised to appoint Justices who would vote to overrule that landmark, and with his three selections, including Neil Gorsuch and Brett Kavanaugh, he appears to have delivered. Barrett is not only a member of a conservative organization within the Catholic Church; her legal writings, and the views of some who know her, suggest that she would overturn Roe.
Still, it’s worth remembering the real priorities of Trump and Mitch McConnell, the Senate Majority Leader, in this nomination. They’re happy to accommodate the anti-abortion base of the Republican Party, but an animating passion of McConnell’s career has been the deregulation of political campaigns. The Supreme Court’s Citizens United decision brought the issue to wide public attention, but McConnell has been crusading about it for decades. He wants the money spigot kept open, so that he can protect his Senate majority and the causes for which it stands. This, too, is why the Federalist Society has been so lavishly funded over the years, and why it has expanded from a mere campus organization into a national behemoth for lawyers and students. Under Republican Presidents, Federalist Society events have come to operate as auditions for judicial appointments. The corporate interests funding the growth of the Federalist Society probably weren’t especially interested in abortion, but they were almost certainly committed to crippling the regulatory state.
Barrett is a product of this movement, and not just because she clerked for Scalia. Her writings and early rulings reflect it. Her financial-disclosure form shows that, in recent years, she has received about seven thousand dollars in honoraria from the Federalist Society and went on ten trips funded by it. But it’s not as if Barrett was bought; she was already sold. The judge has described herself as a “textualist” and an “originalist”—the same words of legal jargon that were associated with Scalia. (She believes in relying on the specific meaning of the words in statutes, not on legislators’ intent. She interprets the Constitution according to her belief in what the words meant when the document was ratified, not what the words mean now.) But these words are abstractions. In the real world, they operate as an agenda to crush labor unions, curtail environmental regulation, constrain the voting rights of minorities, limit government support for health care, and free the wealthy to buy political influence.
It should go without saying that the nomination and the expected confirmation of Barrett in the final days before a Presidential election represent a paramount act of hypocrisy for McConnell and the other Republicans who denied even a hearing to Merrick Garland, President Barack Obama’s choice for the Supreme Court, in 2016. But the fact that these Republicans are willing to risk that charge shows how important the Supreme Court is to them. Far more than a senator, a Supreme Court Justice can deliver on the agenda. The war on abortion is just the start.
Saagar Enjeti discusses the political fallout from the open vacancy on the Supreme Court following the death of RGB.
Graham’s words couldn’t be clearer, nor could those of Senator Chuck Grassley, the former chair of the Senate Judiciary Committee, who blocked Garland. Just last month, Grassley said that he “couldn’t move forward” with a Trump nominee this year because of the 2016 standard. If Republicans force a justice on us, it’s because they believe that standards are for suckers, and people who hold power need not be constrained by any pledge or institutional tradition.
According to Ginsburg’s granddaughter, the justice made a dying wish: “My most fervent wish is that I will not be replaced until a new president is installed.”
It doesn’t matter how exhausted we are, or how difficult the odds. In this hell-spawned year, we can either give up, or give everything we can to stop some of America’s worst men from blotting out the legacy of one of our very best women.
Evidence from recent Supreme Court arguments suggests that the chief justice, like most people, may have ideological and gender blind spots.
Chief Justice John Roberts would like us to think that Supreme Court justices are mere umpires who “don’t make the rules” but simply “apply them.”
When President Trump criticized what he saw as an unreasonable ruling by an “Obama judge,” the chief justice said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
Yet at Supreme Court oral arguments, chief justices have applied rules of the court with very real differences among justices depending on their partisan appointment: Justices appointed by Democrats have been interrupted more frequently than justices appointed by Republicans. And women have been interrupted more frequently than men.
And recently, as the court conducted oral arguments over the phone, it was Chief Justice Roberts himself who did the uneven interrupting in his role as timekeeper.
The pattern of interruptions reflects the reality that Supreme Court justices, like everyone else, are susceptible to bias. It is an unfortunate reality that women are often perceived as talking too much even though studies show that they talk less than men. And it is also the case that people like to hear things they already believe — and interrupt those with whom they disagree.
The same pattern manifests at the Supreme Court.
Normally, Supreme Court arguments are unstructured sessions in which any justice can ask any question at any point in the argument. Justices sometimes interrupt one another and the advocates, and some advocates even interrupt justices.
A 2017 study showed that the interruptions at the Supreme Court are both gendered and ideological. The study, which focused on the Roberts court as well as two earlier Supreme Court terms from the Rehnquist and Burger courts, found that female justices were interrupted at disproportionate rates by their male colleagues and by male advocates. Male justices interrupt more than female justices, and male justices interrupt their female colleagues more than their male colleagues. The interruptions do not reflect female justices’ participation in arguments: Female justices do not talk more than their male colleagues.
The same study also showed an ideological bias in interruptions. Both Democratic-appointed and Republican-appointed justices are more likely to interrupt a justice with whom they disagree. But the conservative justices interrupt their liberal colleagues at higher rates than the liberal justices interrupt their conservative colleagues.
The Covid-19 pandemic has sharpened these divisions. Last month, the court held oral arguments over the phone, and the justices spoke in order of seniority.
The new format shifted more responsibility to the chief justice. In the court’s usual argument structure, the chief justice’s role is to “referee” among justices when more than one speak at the same time. But in the new format, the chief justice was tasked with ensuring that each justice had the opportunity to speak for roughly the same amount of time. That gave the chief justice the power to decide when to end each justice’s time for questions (unless the questioning justice concluded it).
Looking at all the cases together — 10 in total — the chief justice arguably succeeded at being evenhanded. The justices who spoke the most, per questioning period that they used, were Justice Neil Gorsuch and Justice Sonia Sotomayor, who represent different wings of the court. Justice Samuel Alito also spoke for a similar amount of time.
But the devil is in the details, and in some striking respects, the chief justice fell short of the ideal of the neutral umpire. The three justices who were allowed to speak the most in the very politically salient cases — the two cases about the president and one about access to contraception under the Affordable Care Act — were conservative men: Justice Brett Kavanaugh had two of the longest amounts of time in a case, and Justice Alito had the other. The justices who received the three longest individual questioning periods were also all conservative men: Justice Alito had two such periods, and Justice Gorsuch had the other. By contrast, the justices who received the three shortest questioning periods that the chief justice ended were all liberal women: Justice Ruth Bader Ginsburg had two, and Justice Elena Kagan had the other.
When it came to the controversial topic of a woman’s right to contraception access, the conservative Justice Alito was given over a minute and a half longer than the longest questioning period by a justice appointed by a Democratic president — or any of the female justices.
There were also notable differences in whom the chief justice interrupted or cut off. The chief justice ended questioning periods nearly 160 times, typically by interrupting an advocate or concluding after an advocate’s response to another justice’s question. But on 11 occasions, the chief justice interrupted or cut off another justice. Every one of those 11 occasions involved justices who were appointed by Democratic presidents, and nine of the 11 involved female justices.
That is not because the female or Democratic-appointed justices were taking more time. The chief justice interrupted Justice Ginsburg and Justice Stephen Breyer even though they used less time than a majority of their colleagues, including Justice Gorsuch and Justice Kavanaugh, whom the chief justice never once interrupted.
Justice Ginsburg, a senior member of the court, participated from her hospital bed on some days. But the chief justice did not lend her great deference, ending more of her questioning periods than that of the newest member, Justice Kavanaugh, even though she spoke, on average, over 10 seconds less per questioning period than he did. Ten seconds may not sound like much, but is more than enough time to get out an additional question or at least a remark about how an advocate’s claims are unpersuasive.
Similarly, the chief justice ended many more of Justice Sotomayor’s questioning periods than Justice Gorsuch’s, even though they spoke, on average, the same amount of time per questioning period and even though he had two of the six longest questioning periods and she had none.
To be fair to the chief justice, this was an unusual arrangement, and at the same time that he was supposed to be keeping the justices to their time limits, he was also participating in the arguments as a questioner and as a decision maker. By any standard, he had a difficult job.
Still, his uneven application of the rules was not random. It was gendered and ideological, as interruptions have been in previous courts. But it is possible that having these new demands, he could not or did not devote sufficient attention to checking his own biases.
The justices promise to be neutral, but the fact is that they are human with real human biases that affect their decisions. Oral arguments are just another occasion where that comes through.
It’s possible that with experience, Chief Justice Roberts will take corrective steps. If the court continues to have arguments on the phone into the next term, someone else, such as the clerk of the court or the counselor to the chief justice, could keep time and end questioning periods rather than the chief justice.
And if the court reverts to its usual argument, Chief Justice Roberts might want to keep a running tally of who interrupts and whom he allows to speak. Because as much as we may want the chief justice to be a neutral umpire, that is not what we have seen this month at the Supreme Court.
In his new book, ‘Supreme Inequality,’ lawyer/journalist Adam Cohen makes the case that the Supreme Court has been “a right-wing court for 50 years,” siding with corporations and the wealthy — and against the poor.