A Different Washington: November 2020

Tuesday, November 24, 2020

November 24, 2020

Have we touched bottom?

It would be pleasant, and soul-refreshing, to be able to think about something other than politics, other than Trump. Unfortunately, that’s about like not thinking of wind in the midst of a hurricane. Even after Trump is ushered out of the White House, he’ll hover over us, in person or through the destructive movement of which he became the symbol.

Twice before I have speculated as to how low Trumpism could go, reacting to the cruelty of the anti-immigration policy of separating children from parents, then the irresponsible arguments of his lawyers and the craven behavior of his Senate enablers during the impeachment trial. Not surprisingly, Trump and his minions have set a third benchmark, this time undermining democratic government by refusing to accept the result of the election and disrupting the transition.

Donald Trump is such a pathetic figure that one could feel sorry for him if he didn’t cause so much suffering. He cannot face having lost the election, in part because the Presidency protects him from some of his numerous legal challenges, but partly because he is afraid of being labeled a loser. He may, at some depth, know that he is one. His reputation for business success was partly an illusion, given multiple bankruptcies, and to the extent it was real, it depended on help from his father. As the saying goes, he wasn’t really a tycoon; he just played one on television. His real success was — as he would put it — as a star, in that sham, The Apprentice. Similarly, he wasn’t really a president; he just played that part, bragging about the ratings for his news conferences. He was in his element at rallies, where he was a star again. All of this reminds me of a book title, President Reagan: the Role of a Lifetime.¹ However, Ronald Reagan, however one ranks him, was in an entirely different class from the incumbent player.

Trump won the Presidency four years ago only because of our anti-democratic electoral system. He lost the popular vote by 2.8 million, an embarrassment so great that he was forced to dream up theories of fraud to explain it. Now, having lost the electoral vote, and the popular by a larger margin, he again claims fraud and searches for ways to parlay that baseless claim into victory.

The most extreme gambit was described November 19 on Fox, by one of his attorneys, Sidney Powell: the election “in all the swing states should be overturned, and the legislatures should make sure that the electors are selected for Trump.”² His recent meeting with Michigan lawmakers may have been an attempt to push that plan. If so, it failed. It probably will fail in other states as well, but the mere fact that it has been considered marks another milestone on the road toward the destruction of democracy.

Consistency is not Ms. Powell’s strong suit (nor, to be fair to her, is it of the man she attempts to serve and protect). Also on November 19, at a press conference with Rudy Giuliani, she asserted that “President Trump won by a landslide.”³ However, in that same meeting she claimed this: “What we are really dealing with here and uncovering more by the day is the massive influence of communist money through Venezuela, Cuba and likely China and the interference with our elections here in the United States.” If Trump won decisively, why demand that legislatures overturn the election and why trot out a nutty theory to explain how Biden won unfairly? Perhaps she means that Trump would have won —of course by a landslide — if not for the massive conspiracy, a conspiracy so obviously imaginary that she must fall back on communists as the bad guys.

Giuliani added to the fun by seeming to assert that votes somehow were counted in Germany and Spain and by claiming that a truckload of (no doubt fraudulent) ballots mysteriously appeared at a Detroit election center at 4:30 a.m.

Ms. Powell’s comments, at the press conference and later, apparently crossed a line heretofore invisible in a campaign built on fantasy and falsehood. Giuliani and Jenna Ellis, Trump campaign “senior legal adviser,” disowned Ms. Powell on November 22. She is, according to them, “not a member of the Trump Legal Team,⁴ even though she had been so described by Trump and was introduced as such by Giuliani, in Ms. Ellis’ presence, at the press conference.⁵ She is also “not a lawyer for the President in his personal capacity;” she is merely “practicing law on her own,” but somehow was allowed to attend the press conference and speak at length. True, Ms. Powell later attacked the Republican Governor of Georgia, but Trump also criticized his handling of the election. Ms. Ellis is still on the team despite having called Trump an idiot and denounced his supporters for not caring that he was an "unethical, corrupt, lying, criminal, dirtbag."⁶ That was in 2016; perhaps there is a statute of limitations.

Trump’s refusal to admit defeat may soothe his bruised ego, but it led to his administration’s failure to cooperate in the transition. That underscored the irresponsibility which has characterized his term of office by, among other effects, making it more difficult to combat the pandemic.

To the extent that he acknowledges his loss, his reaction is to lash out, firing officials who annoy him, and ordering or considering dangerous actions. He sacked Chris Krebs, director of the Cybersecurity and Infrastructure Security Agency of the Department of Homeland Security, who had declared the election free of fraud, and Secretary of Defense Mark Esper. Despite the turmoil that caused in the Defense Department, Trump considered an attack on Iran and ordered troop reductions in Iraq and Afghanistan.

Bowing to reality, Emily Murphy, head of the General Services Administration, now has announced that the transition may begin. Trump, still straddling his world and the real one, tweeted: “Our case STRONGLY continues, we will keep up the good fight, and I believe we will prevail! Nevertheless, in the best interest of our Country, I am recommending that Emily and her team do what needs to be done with regard to initial protocols, and have told my team to do the same.” Emily says it was her idea, not his.⁷

All of this thrashing about may be a challenge to the loyalty and gullibility of the base, but they probably are up to the task. Even the Powell theories may survive her downfall.

Whatever tendency toward tribalism existed before 2016, however far the Republican Party had fallen by then, the dire situation we now find ourselves in would not have developed, nor would disunion have reached its present dimensions, had it not been for Trump. Perhaps he can console himself with that achievement as his legacy.

____________________________

1. Lou Cannon (1991)

2. https://www.huffingtonpost.ca/entry/trump-election-overturn-biden_n_5fb73d38c5b618e45b46baca

3. https://www.washingtonpost.com/politics/2020/11/19/fact-checking-craziest-news-conference-trump- presidency/?utm_campaign=wp_fact_checker&utm_medium=email&utm_source=newsletter&wpisrc=nl_fact&carta-url=https%3A%2F%2Fs2.washingtonpost.com%2Fcar-ln-tr%2F2ce3707%2F5fb804409d2 fda0efb6e8504% 2F5b65de00ade4e 2779564ed94%2F31%2F45%2F285070d1b362510abc7aa221a64d66bc

4 https://www.washingtonpost.com/politics/2020/11/22/giuliani-releases-statement-distancing-trump- campaign-lawyer-sidney-powell/?utm_campaign=wp_politics_am&utm_medium=email&utm_source= newsletter&wpisrc=nl_politics

5. https://www.cbsnews.com/news/sidney-powell-trump-legal-team-disavows-association/

6. https://www.cnn.com/2020/11/18/politics/kfile-jenna-ellis-2016-trump-comments/index.html

7. https://www.nytimes.com/live/2020/11/23/us/joe-biden-trump#gsa-biden-emily-murphy

Monday, November 2, 2020

November 1, 2020

A mixed but troubling picture

One way to evaluate the Supreme Court’s performance is to rank its decisions as liberal or conservative. The debate over the replacement of Justice Ginsburg proceeded along those lines, and a scholarly appraisal of recent decisions, written before the issue of a replacement arose, largely analyzed them in those terms. I’ll look at that before attempting a different approach.

In the August 20 issue of The New York Review of Books,¹ David Cole found that “the Court’s term was much less conservative than anyone had expected . . , declaring that federal civil rights law bars LGBTQ discrimination, striking down a Louisiana restriction on abortion, and invalidating President Trump’s effort to rescind deportation protection and work authorization from ‘Dreamers’. . .” Also, the Court held that “about half of Oklahoma belonged to the Muscogee (Creek) Nation for purposes of authority to prosecute Native American defendants.” (There had been other, earlier, liberal results, including the granting of constitutional protection to same-sex marriage²).

The Court went both ways on efforts to see Trump’s financial records, holding that the Manhattan District Attorney had authority to pursue the president’s personal and business financial records, but that Congressional subpoenas for Trump records did not take into account the separation of powers. As noted below, I don’t think that the Court always applies that rule to itself.

On the conservative side the Court “restricted immigrants’ rights to judicial review of deportation orders, and required states to fund scholarships for religious schools if they funded secular schools. It excused Catholic schools from abiding by civil rights laws in hiring and firing teachers who provide religious instruction, and upheld President Trump’s order permitting employers to deny their employees contraceptive coverage.”

On October 13 the Court added another decision to the conservative list, in effect terminating the census count.³ That, as The New York Times reported,⁴ “would only worsen existing undercounts of the people census workers have had the most trouble reaching, including those in racial minority groups, poor people and young people,” i.e., likely Democratic voters.

Professor Cole added: “in a series of unexplained or barely explained decisions reviewing requests for emergency stays of lower court orders, the Court four times ruled against efforts to protect voting rights, and twice cleared the way for federal executions by summarily overruling lower courts that had identified serious legal questions that still needed to be resolved.” (More recent rulings on voting have gone both ways.) Those issues and contraceptive coverage also appear in the cases discussed below).

My reaction to the Court’s work, over a period of years, is based primarily on its record as to normal and proper principles of adjudication. The list that follows isn’t neutral or representative of all of the Court’s work; I have selected decisions in which the Court failed to adhere to those principles. However, there are enough of them to reveal, I think, a Court which is not functioning well. (The results in these cases also were wrong on the merits, and all tilted to the right).

What follows is a brief summary; the decisions referred to below were discussed in greater detail in previous posts, which are noted. My comments refer to decisions of the Roberts Court or, in the case of item 1, its intellectual predecessor. I’ve identified the author of the lead opinion in each case.

1. Engaging in partisan politics.

In Bush v. Gore,⁵ the Court decided the 2000 election by halting recounts in Florida, the electoral votes of which would determine the election, in the process overruling the State Supreme Court, which had directed the recount. By doing so, it gave the presidency to George W. Bush, who had lost the national popular vote by 543,895 but, after the recount was halted, won Florida by 537, and the electoral vote 271 to 266. Although the per Curium opinion signaled its departure from precedent by noting that ”[o]ur consideration is limited to the present circumstances,” and although the decision has not, until now, been relied upon, it may be resuscitated. In a concurring opinion last week, in a case which produced another negative result regarding the counting of ballots⁶, Justice Kavanaugh cited Bush v. Gore in a way which may portend similar Supreme Court intervention in this year’s election. Add that three members of the Court — Roberts, Kavanaugh and Barrett —worked for the Bush forces during the 2000 controversy⁷, and that decision looms larger.

2. Going beyond the issues presented.

One basic principle of adjudication is that a decision should not be based on an issue which has not been briefed and argued by the parties; otherwise, they have no opportunity to address matters the Court may find determinative. The Court violated that rule in Citizens United v. Federal Election Commission.⁸ If that is done innocently, it is a failure by the court to do justice, as an unfair and possibly erroneous result may be reached. If it is done intentionally, it reveals that the court has an agenda which it needs a case to serve. Citizens United almost certainly falls into the latter category.

Some opinions are transparent attempts to make a case which does not exist legitimately. Citizens United is an example; it substituted a parade of hypothetical evils for evidence.

3. Misinterpreting the Constitution.

The Roberts Court has been inventive in its reading of the Constitution. Possibly the most egregious example is Heller v. District of Columbia.⁹ In that decision, the Second Amendment was rewritten: its limiting reference to militia was expunged, and unmentioned uses for firearms were inserted and thereby given Constitutional protection.

Shelby County v. Holder ¹⁰ struck down part of the Voting Rights Act. The Court relied on the Tenth Amendment (after misstating it) to find that Congress did not have power to treat states differently regarding voting procedures, ignoring the grant of authority to Congress under the Fifteenth Amendment, which deals, as the Tenth does not, with voting rights.

National Federation of Independent Business v. Sebelius,¹¹ the Obamacare decision, is odd in more than one respect, but its significance here is that it misinterprets, and limits, the Commerce Clause.

5. Misuse of precedent.

Several problems exist; the first is that precedent has been ignored. Heller, to add to its sins, is an example; it brushed aside United States v. Miller, which had relied on the inconvenient reference to militias.

The second problem is that, instead of applying the holdings in prior cases, which is the legitimate form of precedent, the Court has relied on quotes from majority opinions which are not necessary to the holding, i.e., obiter dicta or, worse, from dissenting opinions.¹² As Justice Stevens put it in Citizens United, “the majority opinion is essentially an amalgamation of resuscitated dissents."

Also, the holdings of prior opinions have been misstated or misused. In McCutcheon v. Federal Election Commission¹³, involving campaign contributions, the Court cited Sable Communications of California v. FCC,¹⁴ which didn’t involve campaign spending or contributions, or money in any way. It dealt with regulating content — actual speech — and there is nothing in McCutcheon about regulating content.

In Sebelius, the Court quoted a rule recited in Maryland v. Wirtz as authority; however, Wirtz didn’t follow that rule. As a bonus, the opinion misconstrued a quote from The Federalist Papers.

Shelby cited, in support of a theory of state sovereignty, United States v. Louisiana (1960), in which the state asserted sovereignty as a defense to a claim by the federal government (and lost), and Texas v. White (1869), which referred to state sovereignty under the Articles of Confederation, hardly relevant. The Shelby opinion also claimed: "Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority:’ Coyle v. Smith" even though, as it acknowledged, Coyle concerned a different issue, the admission of new States, and South Carolina v. Katzenbach (1966) limited the principle of equality to that context.

McDonald v. Chicago¹⁵ applied the Second Amendment to the states, based on Heller, the holding of which is as follows: “the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." Instead, McDonald claimed this:“Two years ago, in District of Columbia v. Heller . . . , we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense. . . ." Later, it was somewhat closer to the mark, stating that Heller established “a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home," but that still spreads gun rights far and wide, limited only by an undefined concept of “lawful purpose.” The Heller opinion encouraged such mis-construction by stating that various largely irrelevant sources “guarantee the individual right to possess and carry weapons in case of confrontation.” The loose language of both opinions is a gift to the gun lobby.

6. Substituting the Court’s opinion for Congress’ findings.

In Shelby, the Court ignored Congress’ findings of fact, thereby invalidating part of the Voting Rights Act. Its excuse was that those findings were obsolete, although only seven years old. In effect, the Court held that it had the authority to approve or disapprove of any finding of fact by Congress, a departure from basic practice, and an incursion into the separation of powers.

The Court’s arrogance was revealed also in McCutcheon: “[W]e do not doubt the compelling nature of the ‘collective’ interest in preventing corruption in the electoral process. But we permit [!] Congress to pursue that interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech . . . ." Allegedly protecting First Amendment rights, the Court will decide whether any given law, enacted by the people’s representatives, is inconsistent with the Court’s political outlook which, in McCutcheon, had less regard for the “collective” than for those who can spend money on elections.

7. Misinterpreting statutes.

In general, the Court doesn’t think much of Congress’ ability to draft statutes, but if the Court wanted to ignore a statute, the one involved in Burwell v. Hobby Lobby¹⁶ would have been the perfect candidate, as it made little sense. Instead, the Court rewrote it to suit its aim, which was to allow a corporation to avoid providing contraceptive coverage — as required by regulations under the Affordable Care Act — as part of its health care plan for employees. Along the way, it confused corporations and owners, granted corporations religious rights, and found that the possible use of a contraceptive by a third party (an employee) violated the owners’ and corporation’s religious beliefs, or maybe it was their “exercise of religion.”

8. Avoiding the issue.

In Rucho v. Common Cause,¹⁷ the Court chose not to interfere with partisan gerrymandering. That probably should not have been a surprise; the Court already had declared, in Shelby, its lack of interest in protecting the right to vote. It excused its inaction in part by confusing the terms “political” and “partisan,” allowing it to protect partisan motivation by pretending it was merely part of a valid political process. It cited Baker v. Carr¹⁸ for the proposition that a “political question” is non-justiciable; however, Baker, which established the one-person, one-vote principle, did not apply that rule.

9. Misplaced deference to views of the founding era.

Bucklew v. Precythe¹⁹ denied a challenge to a state’s method of execution; the prisoner’s claim was that, because of his medical condition, that method would cause great suffering. The Court held against him, applying the standards of the Eighteenth Century regarding cruelty and ignoring the principle that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," a principle reaffirmed in 2002, in another Eighth Amendment death penalty case.²⁰ The Bucklew opinion is originalism run riot.

As a result of these dubious decisions, we have a troubling attitude toward elections, and bad law on money in politics, gun control, voting rights and state sovereignty, gerrymandering, the Commerce Clause, religious rights of corporations and the death penalty. It may get worse.

¹ https://www.nybooks.com/articles/2020/08/20/roberts-court-declarations-independence/

² Obergefell v. Hodges, 576 U.S. 644 (2015)

³ Ross v. National Urban League, 592 U. S. ____ (2020)

⁴ https://www.nytimes.com/article/census-supreme-court-ruling.html

⁵ 531 U.S. 98 (2000). My comments are scattered; see 8/10/13. The opinion was per Curium; of the majority, only Justice Thomas still is on the Court.

⁶ Democratic National Committee v Wisconsin State Legislature

⁷ https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts- supreme-court/index.html

⁸ Kennedy; 558 U.S. 310 (2010); discussed on 2/6/10.

⁹ Scalia; 554 U.S. 570 (2008); 7/6/08

¹⁰ Roberts; 570 U.S. 529 (2013); 7/1/13, 2/24/16, 10/8/19

¹¹ Roberts; 567 U.S. 519 (2012); 7/6/12, 11/15/15

¹² I discussed this on 5/13/14 in connection with McCutcheon v. Federal Election Commission

¹³ Roberts; 572 U.S. 185 (2014); 5/13/14

¹⁴ 492 U. S. 115 (1989)

¹⁵ Alito; 561 U.S. 742 (2010); 7/11/16

¹⁶ Alito; 573 U.S. 682 (2014); 7/15/14

¹⁷ Roberts, 588 U.S. ___ (2019); 10/8/19

¹⁸ 369 U. S. 186, 217 (1962)

¹⁹ Gorsuch; 583 US __ (2019); 4/13/19

²⁰ Atkins v. Virginia, 536 US 304 (2002)