Supreme Court

The dog has caught the car

by

Heather Cox Richardson | Letters from an American

HCR
Heather Cox Richardson

May 3, 2022

In 1985, President Ronald Reagan’s team made a conscious effort to bring evangelicals and social conservatives into the voting base of the Republican Party. The Republicans’ tax cuts and deregulation had not created the prosperity party leaders had promised, and they were keenly aware that their policies might well not survive the upcoming 1986 midterm elections. To find new voters, they turned to religious groups that had previously shunned politics.

“Traditional Republican business groups can provide the resources,” political operative Grover Norquist explained, “but these groups can provide the votes.” To keep that base riled up, the Republican Party swung behind efforts to take away women’s constitutional right to abortion, which the Supreme Court had recognized by a vote of 7–2 in its 1973 Roe v. Wade decision and then reaffirmed in 1992 in Planned Parenthood v. Casey.

Although even as recently as last week, only about 28% of Americans wanted Roe v. Wade overturned, Republicans continued to promise their base that they would see that decision destroyed. Indeed, the recognition that evangelical voters would turn out to win a Supreme Court seat might have been one of the reasons then–Senate majority leader Mitch McConnell refused to hold hearings for then-president Barack Obama’s nominee for the Supreme Court, Merrick Garland. Leaving that seat empty was a tangible prize to turn those voters out behind Donald Trump, whose personal history of divorces and sexual assault was not necessarily attractive to evangelicals, in 2016.

But, politically, the Republicans could not actually do what they promised: not only is Roe v. Wade popular, but also it recognizes a constitutional right that Americans have assumed for almost 50 years. The Supreme Court has never taken away a constitutional right, and politicians rightly feared what would happen if they attacked that fundamental right.

Last night, a leaked draft of a Supreme Court decision, written by Justice Samuel Alito, revealed that the court likely intends to overturn Roe v. Wade, taking away a woman’s constitutional right to reproductive choice. In the decision, Alito declared that what Americans want doesn’t matter: “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” he wrote.

The dog has caught the car.

Democrats are outraged; so are the many Republican voters who dismissed Democratic alarms about the antiabortion justices Trump was putting on the court because they believed Republican assurances that the Supreme Court justices nominated by Republican presidents and confirmed with Republican votes would honor precedent and leave Roe v. Wade alone. Today, clips of nomination hearings circulated in which Justices Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, and even Samuel Alito–—the presumed majority in favor of overturning Roe v. Wade—assured the members of the Senate Judiciary Committee that they considered Roe v. Wade and the 1992 Planned Parenthood v. Casey decision upholding Roe settled law and had no agenda to challenge them.

Those statements were made under oath by those seeking confirmation to our highest judicial body, and they now appear to have been misleading, at best. In addition, the decision itself is full of right-wing talking points and such poor history that historians have spent the day explaining the actual history of abortion in the United States. This sloppiness suggests that the decision—should it be handed down in its current state—is politically motivated. And in a Pew poll conducted in February, 84% of Americans said they believed that justices should not bring their political views into their decision making.

Senator Susan Collins (R-ME) and Senator Lisa Murkowski (R-AK) provided key votes for Trump’s nominees and are now on the defensive. Collins publicly defended her votes for both Gorsuch and Kavanaugh around the time of their confirmation, saying she did not believe they would overturn Roe. She noted that Gorsuch was a co-author of “a whole book” on the importance of precedent, and that she had “full confidence” that Kavanaugh would not try to overturn Roe. Murkowski voted to confirm Gorsuch and Barrett.

Collins today said: “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.” Like Collins, Murkowski noted that the final decision could change, but ‘if it goes in the direction that this leaked copy has indicated, I will just tell you that it rocks my confidence in the court right now.” The draft is not going in “the direction that I believed that the court would take based on statements that have been made about Roe being settled and being precedent.”

Washington Post columnist Jennifer Rubin suggested that the Senate Judiciary Committee should hold hearings on whether the justices lied in their confirmation hearings, and call Senators Collins and Murkowski as witnesses.

This apparent shift from what they had promised is a searing blow at the legitimacy of the Supreme Court, which was already staggering under the reality that three of the current justices were nominated by Donald Trump, who lost the popular vote and then tried to destroy our democracy; two were nominated by George W. Bush, who also lost the popular vote in his first term; and one other is married to someone who supported the January 6 insurrection and yet refused to recuse himself from at least one case in which she might be implicated.

Today, Republicans tried to turn this story into one about the leak of the draft document, which is indeed a rare occurrence (although not unprecedented), rather than the decision itself. Senate minority leader Mitch McConnell (R-KY) blamed the leaker for attacking the legitimacy of the court, although McConnell’s refusal in 2016 to hold hearings for Obama’s Supreme Court nominee on the grounds that eight months was too close to an election to confirm a justice before shoving Barrett through in October 2020 when balloting was already underway arguably did more to undermine the court’s legitimacy. Echoing him, one commentator said the draft leak was worse than the January 6 insurrection.

But while McConnell and the right wing are implying that a liberal justice’s office leaked the draft, there is no evidence either way. Observers note, in fact, that the leak would help the right wing more than the dissenters, since it would likely lock in votes. Those trying to blame the liberal justices did not comment on an apparent leak from Chief Justice Roberts’s office that suggested he wanted a more moderate decision. Jennifer Rubin suggested calling the bluff of those blaming the liberal justices: she proposed agreeing that whichever office leaked the draft ought to recuse from the final decision.

Republican politicians have largely stayed silent on the draft decision itself today, but the reaction of Nevada Republican Adam Laxalt, who is running for Senate, suggested the pretzel Republican politicians are going to tie themselves into in order to play to the base without alienating the majority. Laxalt issued a statement on Twitter that said the leaked draft represented a “historic victory for the sanctity of life,” but also said that since abortion is legal in Nevada, “no matter the Court’s ultimate decision on Roe, it is currently settled law in our state.”

Democrats, though, are not only defending the constitutional right recognized by Roe v. Wade, but also calling attention to the draft’s statement that the Fourteenth Amendment under which the Supreme Court has protected civil rights since the 1950s can cover only rights that are “deeply rooted in this Nation’s history and tradition.”

It seems likely that the right-wing justices, who are demonstrating their radicalism by overturning a 50-year precedent, are prepared to undermine a wide range of constitutional rights on the grounds—however inaccurate—that those rights are not deeply rooted in the justices’ own version of this nation’s history and tradition.

Protesters turned out in front of the Supreme Court and across the country today vowing that women will not go backward. As actress Ashley Nicole Black tweeted: “There’s a particular slap to the face of being told we can vote for abortion rights, by the court that gutted voting rights.”

Lawyer says Trump is immune from any legal consequences. Judge may disagree

by

Heather Cox Richardson | Letters from an American

HCR
Heather Cox Richardson

January 10, 2022

Today, U.S. District Judge Amit Mehta held a hearing in Washington, D.C., to determine whether three lawsuits against former president Trump and a number of his loyalists should be permitted to go forward.

The lawsuits have been filed by Democratic members of the House and Capitol Police officers injured on January 6 against Trump, lawyer Rudy Giuliani, Donald Trump Jr., Representative Mo Brooks (R-AL), and others. The plaintiffs are trying to hold Trump and his team liable in a civil suit for inciting the January 6 insurrection.

But the questions in these three cases mirror those being discussed by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, and touch on whether the former president committed a crime by inciting insurrection or by standing back while the rioters stopped the official proceedings of Congress (which itself is a crime).

Most significantly, Judge Mehta grappled with the meaning of Trump’s refusal to call off the rioters for 187 crucial minutes during the insurrection as they stormed the Capitol. This is a key factor on which the January 6th committee is focused, and Mehta dug into it.

While Trump’s lawyer tried to argue that the president could not be in trouble for failing to do something—that is, for failing to call off the rioters—the judge wondered if Trump’s long silence indicated that he agreed with the insurrectionists inside the Capitol. “If my words had been misconstrued…and they led to violence, wouldn’t somebody, the reasonable person, just come out and say, wait a second, stop?” he asked.

The judge also tried to get at the answer to whether the actions of Trump and his loyalists at the rally were protected as official speech, or were part of campaign activities, which are not protected. Brooks told the judge that everything he did—including wearing body armor to tell the crowd to fight—was part of his official duties. The Department of Justice said this summer that it considered the rally a campaign event and would not defend Brooks for his part in it.

Trump’s lawyer, Jesse Binnall, argued that Trump is absolutely immune from any legal consequences for anything he said while president. “So the president, in your view, is both immune to inciting the riot and failing to stop it?” Mehta asked.

When Binnall suggested the judge was holding Trump to a different standard than he would hold a Democrat, Mehta called the charge “simply inappropriate.”

For all their bluster before the media, key figures in the events of January 6 appear to be increasingly uncomfortable. Last night, Representative Jim Jordan (R-OH) joined other Trump administration figures when he announced that he would not appear before the January 6th committee. It has asked him to testify voluntarily, since he has acknowledged that he spoke to Trump on January 6, and since the committee has at least one text from him appearing to embrace the theory that the election results could be overturned.

Jordan claimed that the committee has no legitimate legislative purpose, although a judge has said otherwise.

Observers today noted that Jordan is denying that he recognizes the authority of Congress, and pointed out that in 2015, then–Secretary of State Hillary Clinton did, in fact, recognize that authority when she testified for 11 hours before a Republican-led House Select Committee on Benghazi.

Today, establishment Republicans showed some resistance to Trump’s attempt to remake the Republican Party as his own when they made a desperate push to stop litigating the 2020 election and instead to move forward. Senator Mike Rounds (R-SD) appeared Sunday on ABC News, where he said the 2020 election was “fair” and that Trump lost. “We simply did not win the election, as Republicans, for the presidency,” he said. The former president then issued a rambling statement asking: “Is he crazy or just stupid?”

Rounds retorted that the party must focus on “what lies ahead, not what’s in the past.” Senator MItt Romney (R-UT) jumped aboard, tweeting that Rounds “speaks truth knowing that our Republic depends upon it.” Alaska Senator Lisa Murkowski actually made fun of Trump on Friday with a local political news outlet, mocking his endorsement of the Alaska governor’s reelection only if the governor did not endorse Murkowski.

In North Carolina today, eleven voters filed a challenge with the State Board of Elections to Madison Cawthorn as a candidate for reelection on the grounds that he is disqualified by the third section of the Fourteenth Amendment, which prohibits from holding office anyone “who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

North Carolina law says “[t]he burden of proof shall be upon the candidate, who must show by a preponderance of the evidence of the record as a whole that he or she is qualified to be a candidate for the office.”

In late December 2021, Cawthorn told supporters to “call your congressman and feel free—you can lightly threaten them…. Say: ‘If you don’t support election integrity, I’m coming after you. Madison Cawthorn’s coming after you. Everybody’s coming after you.’” Cawthorn spoke at the January 6 “Stop the Steal” rally before the crowd broke into the Capitol, suggesting he supported the attack, then voted against accepting the certified ballots from certain states. Cawthorn continues to question the legitimacy of Biden’s election and, last summer, warned there could be “bloodshed” over future elections.

The group filing the challenge promised it would be the first of many.

Trump, Navarro and Bannon had a “peaceful” plan to overturn the election. It failed … thus far

by

Heather Cox Richardson | Letters from an American

HCR
Heather Cox Richardson

December 29, 2021

Yesterday, Josh Kovensky at Talking Points Memo reported that the Trump allies who organized the rally at the Ellipse at 9:00 a.m. on January 6 also planned a second rally that day on the steps of the Supreme Court. To get from one to the other, rally-goers would have to walk past the Capitol building down Constitution Avenue, although neither had a permit for a march.

The rally at the Supreme Court fell apart as rally-goers stormed the Capitol.

Trump’s team appeared to be trying to keep pressure on Congress during the counting of the certified electoral votes from the states, perhaps with the intent of slowing down the count enough to throw it into the House of Representatives or to the Supreme Court. In either of those cases, Trump expected to win because in a presidential election that takes place in the House, each state gets one vote, and there were more Republican-dominated states than Democratic-dominated states. Thanks to then–Senate Majority Leader Mitch McConnell’s (R-KY) removal of the filibuster for Supreme Court appointments, Trump had been able to put three justices on the Supreme Court, and he had said publicly that he expected they would rule in his favor if the election went in front of the court.

This story is an important backdrop of another story that is getting oxygen: Trump trade advisor Peter Navarro’s claim that he, Trump, and Trump loyalist Steve Bannon had a peaceful plan to overturn the election and that the three of them were “the last three people on God’s good Earth who wanted to see violence erupt on Capitol Hill.”

According to these stories, their plan—which Navarro dubs the Green Bay Sweep—was to get more than 100 senators and representatives to object to the counting of the certified ballots. They hoped this would pressure Vice President Mike Pence to send certified votes back to the six contested states, where Republicans in the state legislatures could send in new counts for Trump. There was, he insists, no plan for violence; indeed, the riot interrupted the plan by making congress members determined to certify the ballots.

Their plan, he writes, was to force journalists to cover the Trump team’s insistence that the election had been characterized by fraud, accusations that had been repeatedly debunked by state election officials and courts of law. The plan “was designed to get us 24 hours of televised hearings…. But we thought we could bypass the corporate media by getting this stuff televised.” Televised hearings in which Trump Republicans lied about election fraud would cement that idea in the public mind.

Maybe. It is notable that the only evidence for this entire story so far is Navarro’s own book, and there’s an awful lot about this that doesn’t add up (not least that if Trump deplored the violence, why did it take him more than three hours to tell his supporters to go home?). What does add up, though, in this version of events is that there is a long-standing feud between Bannon and Trump advisor Roger Stone, who recently blamed Bannon for the violence at the Capitol. This story exonerates Trump and Bannon and throws responsibility for the violence to others, notably Stone.

Although Navarro’s story is iffy, it does identify an important pattern. Since the 1990s, Republicans have used violence and the news coverage it gets to gain through pressure what they could not gain through votes.

Stone engineered a crucial moment for that dynamic when he helped to drive the so-called Brooks Brothers Riot that shut down the recounting of ballots in Miami-Dade County, Florida, during the 2000 election. That recount would decide whether Florida’s electoral votes would go to Democrat Al Gore or Republican George W. Bush. As the recount showed the count swinging to Gore, Republican operatives stormed the station where the recount was taking place, insisting that the Democrats were trying to steal the election.

“The idea we were putting out there was that this was a left-wing power grab by Gore, the same way Fidel Castro did it in Cuba,” Stone later told legal analyst Jeffrey Toobin. “We were very explicitly drawing that analogy.” “It had to be a three-legged stool. We had to fight in the courts, in the recount centers and in the streets—in public opinion,” Bush campaign operative Brad Blakeman said.

As the media covered the riot, the canvassing board voted to shut down the recount because of the public perception that the recount was not transparent, and because the interference meant the recount could not be completed before the deadline the court had established. “We scared the crap out of them when we descended on them,” Blakeman later told Michael E. Miller of the Washington Post. The chair of the county’s Democratic Party noted, “Violence, fear and physical intimidation affected the outcome of a lawful elections process.” Blakeman’s response? “We got some blowback afterwards, but so what? We won.”

That Stone and other Republican operatives would have fallen back on a violent mob to slow down an election proceeding twenty years after it had worked so well is not a stretch.

Still, Navarro seems eager to distance himself, Trump, and Bannon from any such plan. That eagerness might reflect a hope of shielding themselves from the idea they were part of a conspiracy to interfere with an official government proceeding. Such interference is a federal offense, thanks to a law passed initially during Reconstruction after the Civil War, when members of the Ku Klux Klan were preventing Black legislators and their white Republican allies from holding office or discharging their official duties once elected.

Prosecutors have charged a number of January 6 defendants with committing such interference, and judges—including judges appointed by Trump—have rejected defendants’ arguments that they were simply exercising their right to free speech when they attacked the Capitol. Investigators are exploring the connections among the rioters before January 6 and on that day itself, establishing that the attack was not a group of individual protesters who randomly attacked at the same time, but rather was coordinated.

The vice-chair of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, Liz Cheney (R-WY), has said that the committee is looking to see if Trump was part of that coordination and seeking to determine: “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceedings to count electoral votes?”

Meanwhile, the former president continues to try to hamper that investigation. Today, Trump’s lawyers added a supplemental brief to his executive privilege case before the Supreme Court. The brief claims that since the committee is looking at making criminal referrals to the Department of Justice, it is not engaged in the process of writing new legislation, and thus it is exceeding its powers and has no legitimate reason to see the documents Trump is trying to shield.

But also today, a group of former Department of Justice and executive branch lawyers, including ones who worked for presidents Ronald Reagan, George H.W. Bush, and George W. Bush, filed a brief with the Supreme Court urging it to deny Trump’s request that the court block the committee’s subpoena for Trump’s records from the National Archives and Records Administration. The brief’s authors established that administrations have often allowed Congress to see executive branch documents during investigations and that there is clearly a need for legislation to make sure another attack on our democratic process never happens again.

The committee must see the materials, they wrote, because “[i]t is difficult to imagine a more compelling interest than the House’s interest in determining what legislation might be necessary to respond to the most significant attack on the Capitol in 200 years and the effort to undermine our basic form of government that that attack represented.”