The past isn't dead. It isn't even past.
Sometimes I like to imagine what things might be like in the alternate universe where Al Gore won the 2000 presidential election. Maybe there was no Iraq War, because Gore's Cabinet wouldn't have been full of neocons. Following 9/11, the US still probably would have gone to war in Afghanistan, but without the shiny object of invading Iraq distracting everyone, the US might have caught up with Osama bin Laden in 2003 or 2004, not 2011. [Some of us who are editing this post think there would have been no 9/11, but Dok is being obstinate about it even though he is wrong.] [And others of us who wrote the post think there's at best a better chance that 9/11 would have been avoided] And just think of how much farther the US would be toward addressing global warming if Gore had had even a single term to put us on that track? Haha, we know from science fiction that the actual outcome would somehow involve brain-eating worms from Neptune, because those "better" timelines always go wrong.
In any case, we at least know a little more today about how we ended up with George W. in the White House, because on Tuesday, the Library of Congress made available files from the late Supreme Court Justice John Paul Stevens, which CNN reports include a bunch of memos from the Supreme Court's wrangling over the Bush v. Gore decision, which handed the election to George W. Bush. If you have a spare 15 minutes today, go ahead and read the CNN piece, which looks at how Justice Sandra Day O'Connor joined up with Justice Anthony Kennedy to shape the unsigned opinion that was eventually released by the five Republican-appointed justices in the majority. The alliance between Kennedy and O'Connor shut out a far more radical opinion pushed by then-Chief Justice William Rehnquist.
Spoiler warning: The Kennedy/O'Connor option was bad enough, laying the groundwork for the openly partisan Court we have today. But the Rehnquist option, which he published as a concurring opinion, endorsed the fuckbonkers "Independent State Legislature Doctrine" that became the basis for Donald Trump and his cronies' attempt to overturn the 2020 election, was far far worse. Had Rehnquist's view prevailed in 2000, we can only assume the brain eating worms from Neptune would have been close behind.
On December 10, 2000, even before oral arguments in the case, O'Connor circulated a four-page memo that laid out much of the rationale for what went into the eventual opinion, particularly the argument for blocking the Florida Supreme Court's order for some counties to hand-count "undervotes" — ballots that may not have shown up in the machine count, but which had some evidence of the voter's intent, like a "hanging" or "dimpled chad," and OMG I am having 2000 flashbacks already. O'Connor's memo argued, as did the eventual opinion, that there was so much variation in how the counties were conducting the recounts that there was no way to ensure "equal protection of the law."
CNN summarizes thusly:
“The Florida Supreme Court provided no uniform, statewide method for identifying and separating the undervotes,” O’Connor wrote, referring to instances when machines had failed to detect a vote for president. “Accordingly, there was no guarantee that those ballots deemed undervotes had not been previously tabulated. More importantly, the court failed to provide any standard more specific than the ‘intent of the voter’ standard to govern this statewide undervote recount. Therefore, each individual county was left to devise its own standards.”
For that reason, O'Connor wrote, the recount system “in no way resembles the statutory scheme created by the Florida legislature” for choosing electors, so the recount should be shut down and the state's certification of the election for Bush, by just 537 votes, should be upheld.
Kennedy wrote to Rehnquist on December 11 to say
“Sandra’s memorandum sets forth a very sound approach” and said he wanted to build on it. He suggested he would point up how the varying recount practices breached the guarantee of equal protection.
Up to that point, CNN says, Rehnquist seems to have been planning to collaborate with Kennedy on a "composite opinion" that would include both the equal protection argument and Rehnquist's pet theory that the Constitution allows state legislatures to decide how to award electors without any interference from state courts, and regardless of how people actually voted, which is every bit as bizarre as it sounds. Once it became clear Kennedy wouldn't join him on that train to Crazyville, Rehnquist rewrote his own draft as a concurring opinion that was joined only by Antonin Scalia and Clarence Thomas.
CNN notes that Kennedy
had foreshadowed his reluctance to accept that theory during the Bush v. Gore oral arguments. “It seems to me essential to the republican theory of government that the constitutions of the United States and the states are the basic charter, and to say that the legislature of the state is unmoored from its own constitution, and it can’t use its court … (is) it seems to me a holding which has grave implications for our republican theory of government.”
But then, 20 years later, it sure looked to a lot of Trump supporters like a terrific way to keep him in office while claiming that the actual election results in several Republican-controlled states won by Joe Biden were simply too unknowable to rely on, so it would be best if the legislators simply stepped in to save the election from the voters. Guess we know where the brain-eating worms from Neptune ended up!
We also learn that Antonin Scalia was really pissed off that the four dissenting Democratic appointees had each submitted their own dissents saying that the Court's decision would undermine its legitimacy, presumably because that idea wouldn't occur to anyone if the justices in the minority had simply stayed quiet.
“Going home after a long day,” Scalia wrote to fellow justices when it was all over on December 12, “I cannot help but observe that those of my colleagues who were protesting so vigorously that the Court’s judgment today will do it irreparable harm have spared no pains – in a veritable blizzard of separate dissents – to assist that result. Even to the point of footnote 4 in Ruth’s offering (I call it the Al Sharpton footnote), alleging on the basis of press reports ‘obstacles to voting disproportionately encountered by black voters.’”
Oh, and big surprise, Scalia comes across as a big ol' racist, too! Ruth, why are you sounding like that awful man Al Sharpton? Scalia wasn't finished tut-tutting, though:
“I am the last person to complain that dissents should not be thorough and hard-hitting (though it would be nice to have them somewhat consolidated). But before vigorously dissenting (or, come to think of it, at any other time) I have never urged the majority of my colleagues to alter their honest view of the case because of the potential ‘damage to the Court.’ I just thought I would observe the incongruity. Good night.” He signed it, “Sincerely, Nino.”
Kennedy similarly sent a memo around to let his liberal colleagues know just how disappointed he was, not personally, no, but just for what they had done to the Court by badmouthing the very nonpartisan decision to hand the election to the Republican:
“I do not usually respond to dissenting opinions, and will not do so for the per curiam in this case. I take the occasion in this memo, however, to say that the tone of the dissents is disturbing both on an institutional and personal level. I have agonized over this and made my best judgment. Some of the dissenters in fact agree on the equal protection point, but take great pains to conceal that agreement. The dissents, permit me to say, in effect try to coerce the majority by trashing the Court themselves, thereby making their dire, and I think unjustified, predictions a self-fulfilling prophecy.”
What a sad state of affairs! And here we are, all these years later, with Democrats once more trying to undermine the legitimacy of the Supreme Court after it very soberly and non-partisanly eliminated women's rights to bodily autonomy. How disappointed Antonin Scalia would be in all of you.
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Signs three Git Tuff crime bills so 2024 primary voters will know he's Gittin' Tuff on Crime.
Florida Gov. Ron DeSantis signed three new bills on crime Monday, to prove that he is officially Tough On Crime as he prepares to run for the 2024 Republican nomination. The real headline-catcher is a bill that would restore Florida's death penalty for child rape, even though the United States Supreme Court in 2008 banned the use of capital punishment for anything other than murder. DeSantis figures — probably correctly — that the new composition of the Court may be happy to let states start killing people for crimes that everyone agrees are heinous, because who would want to spare the life of a child rapist anyway? The angry tweets write themselves, and may even be a useful distraction from DeSantis's embarrassing flailing in his war on Disney.
To be clear, Yr Wonkette is opposed to the death penalty in all circumstances, because the state shouldn't be in the business of killing anyone. No, we do not want mass murderers teaching kindergarten, either.
DeSantis's signing announcement, however, was firmly focused on touting another of the bills, HB 1627, which sets minimum bail bond recommendations. Judges would be free to set higher bail amounts, but not to allow anything lower than the minimum without the approval of the Florida Supreme Court. It's all part of DeSantis's presidential ambitions, so he can run against blue states' horrible "woke" prosecutors even if he doesn't have any handy in Florida, having already fired them. DeSantis said the minimum bail requirements would "handcuff" any "pro-criminal judges" that might be lurking out there.
The crime bills certainly had the desired effect on at least one DeSantis lickspittle, state Sen. Jonathan Martin, who gushed that DeSantis is "standing between the child molesters and the wokeism, [...] And someday he’ll be maybe having more of a decision on some of these federal judges."
As the Tampa Bay Times reports, DeSantis essentially acknowledged that the bail law is all about underlining his Tough Guy credentials, not addressing a problem that actually exists:
“Part of doing well is preempting things before they happen,” he said during a bill-signing ceremony in Titusville. “We can sit there and wait for things to go south, but if you can get ahead, it does make a difference. So here is us looking. And we’re proud of what we’ve done, but we also understand we’ve got to stay ahead of the curve. So we’re doing that here today, and I think the state will be better off for it.”
DeSantis said he wanted to differentiate Florida from states like New York and Illinois, which have initiated criminal justice reforms like the elimination of cash bail.
Never mind the research showing that cash bail hits poor and minority people hardest, and can turn into a form of debt peonage. Republicans hate bail reform, so even though Florida hasn't done it, DeSantis and his compliant R legislative supermajority are reforming bail the other direction. He happily explained that
“This is kind of the anti-New York, in terms of what we’re doing. [...] They wanted to basically say that a lot of these crimes should be treated with a slap on the wrist. We’re doing the opposite.”
The other two bills are also designed to lay down markers for 2024 and to prove he's the One True Fox News candidate. One, HB 1359, sets a minimum sentence of three years for anyone who manufactures, sells, or traffics fentanyl and similar opioids, but the real wingnut bait is the bill's enhanced punishment for a crime that the Tampa Bay Times notes "is rare, if not nonexistent":
That penalty would jump to a minimum of 25 years and fine of $1 million if a minor is involved. DeSantis invoked the specter of drug dealers disguising fentanyl as Halloween candy “to try to get it into our youth,” [...]
“They need to be treated like murderers, because they are murdering people,” DeSantis said.
Look, drug dealers handing out fentanyl candy on Halloween may not be happening, but lack of reality was no reason not to freak out about teachers supposedly telling little white kids that they're personally responsible for slavery, or about rampant voter fraud.
The third measure DeSantis signed, HB 1297, the bill requiring the death penalty for certain sex crimes against children, was near and dear to DeSantis's heart; he specifically asked the Lege for that one in January, explaining that "We really believe that part of a just society is to have appropriate punishment, and so, if you commit a crime that is really, really heinous, you should have the ultimate punishment."
As we noted, the Supreme Court in 2008 held that the "death penalty should not be expanded to instances where the victim’s life was not taken," in an opinion written by former Justice Anthony Kennedy, in a case where the plaintiff's last name was also Kennedy. Before Kennedy's opinion in Kennedy v. Louisiana, eight states, including Florida, had death penalties for raping children, but none had actually executed anyone since capital punishment was reinstated in 1976. The Court had previously ruled, in 1977, that the death penalty for the rape of an adult was unconstitutional.
The new law is designed to be challenged so the far more rightwing Trump Court can overturn the Kennedy decision, which DeSantis has said he thinks was wrongly decided. The Tampa Bay Times explains the law would allow capital punishment for sexual battery of a child under the age of 12, but only "if jurors unanimously find two aggravating factors regarding the circumstances of the case or the victim, such as whether the victim was disabled." Currently, in other capital murder cases, Florida jurors only need to find a single aggravating factor.
But while the statute seems fairly narrowly drawn, another "reform" signed into law by DeSantis late last month will also make it far easier for juries to impose the death penalty. Previous Florida law required all 12 jurors in a capital case to vote for death, but the new law allows juries to recommend execution with just an eight to four vote. DeSantis pursued the looser standard after the jury in the trial of the Parkland massacre shooter split 9-3 on the death penalty.
Now Florida courts can get to work executing more people, and presumably racking up an even higher record of wrongful convictions than it already has; the state currently leads the USA in death row exhonerees with 30. Heck, Florida's even sending people back to prison to serve out life sentences after appealing federal court rulings that they were wrongly convicted.
And if DeSantis gets his wish and the Supreme Court upholds HB 1297, that will no doubt invite other states to challenge earlier rulings so the Court can start tinkering with the machinery of death for other crimes that aren't murder, like perhaps the currently unused statutes in Florida and Missouri that allow death sentences for drug trafficking, or several states' laws allowing executions for aggravated kidnapping.
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Sorry, not sorry.
Has there ever been a bigger snowflake than Supreme Court Justice Sam Alito? A public figure so willing to jettison the decorum of his office to howl at his critics? A man so supremely indignant that anyone would dare speak out against him?
Honestly, it's pathetic. This 73-year-old manbaby is showing his whole ass again, whining to two conservative commentators at the Wall Street Journal (shocker!) that no one in history has ever had it so tough:
Justice Alito says “this type of concerted attack on the court and on individual justices” is “new during my lifetime. . . . We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense.” Instead, “if anything, they’ve participated to some degree in these attacks.”
Why won't the legal establishment rally around five justices who tossed out decades of precedent on grounds of fuck you, we're the majority now? Yeah, it's a headscratcher!
But his interviewers are so overcome with sympathy for the jurist's unparalleled tale of woe that they're able to tune out the klaxons of cognitive dissonance — not to mention gross historical inaccuracy — of his message.
"The losing side has even resorted to violence before: Antiabortion extremists assassinated four abortion doctors between 1993 and 2009," they admit, before seamlessly pivoting to the greatest injustice of all: attacks on the court's legitimacy.
But as the court has grown more conservative in recent years, the left has stepped up the attacks on the court’s “legitimacy,” including character assassination of individual justices, with little objection from mainstream Democrats and plenty of help from the media.
And so, to his critics who note that Alito is constantly giving speeches and interviews that compromise the integrity of his office, they respond that the poor man had no choice.
Judges are in a double bind: If they don’t respond, the attacks stand. If they do, they diminish the mystique on which judicial authority depends.
Alito is still pissed about the leak of his Dobbs opinion gutting abortion rights for women, which he describes as an attempt to pressure conservative justices into defecting from the majority by making them "targets of assassination."
And he's pissed about having to deal with gross ladyparts stuff, however you pronounce it:
Justice Alito finds these applications a nuisance. “They’re very disruptive. But what are we supposed to do? They are brought to us. The last administration brought a lot of them to us because a lot of its programs were enjoined. This administration is doing the same thing right now. The solicitor general has said that she’s likely to file an application here to stay the Fifth Circuit’s order in the case involving the—mifestiprone? However you pronounce the word.” It’s mifepristone, an abortion drug that a lower court had said the Food and Drug Administration erred in approving.
It’s April 13 when Justice Alito tells us: “I have to prepare for a sitting next week. The next two weeks we have arguments. I have to prepare for all of those cases. But when this comes in, I’m going to have to put all that aside and deal with it.”
For the record, Justice Alito issued an administrative stay in the Alliance case, then unleashed a broadside against his fellow conservatives for failing to take advantage of an opportunity to deny women healthcare. Ever on brand, the man enraged by the tiniest slight dismissed the actual harms to the FDA's authority to regulate medication and a drug company being forced to remove its product from the marketplace, not to say to women themselves, as mere speculation.
Alito is also furious that those who would undermine the Court's legitimacy by observing that it has become a de facto organ of the Republican Party:
Those who throw the mud then disparage the justices for being dirty. “We’re being bombarded with this,” Justice Alito says, “and then those who are attacking us say, ‘Look how unpopular they are. Look how low their approval rating has sunk.’ Well, yeah, what do you expect when you’re—day in and day out, ‘They’re illegitimate. They’re engaging in all sorts of unethical conduct. They’re doing this, they’re doing that’?”
It “undermines confidence in the government,” Justice Alito says. “It’s one thing to say the court is wrong; it’s another thing to say it’s an illegitimate institution. You could say the same thing about Congress and the president. . . . When you say that they’re illegitimate, any of the three branches of government, you’re really striking at something that’s essential to self-government.”
How dare you notice that Republicans refused to fill Scalia's seat, then blew up the filibuster to allow a president who lost the popular vote to name three justices who have systematically enacted policies disfavored by the majority of Americans!
And no, he will not be answering questions about his colleague Clarence Thomas's eccentric habit of accepting hundreds of thousands of dollars worth of hospitality from a rightwing billionaire every year. Nor will he be addressing his own habit of hobnobbing with rich conservatives with business before the court and tipping them off when a decision they like is in the offing — not that his WSJ interlocutors asked!
He's far too busy inveighing against law students who shout insults and say he shouldn't be there. Don't they understand he's a Supreme Court justice, not a woman seeking to access health care? The very nerve!
Catch Liz Dye on Opening Arguments podcast.
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Fam, we are shook.
You guys. Maybe you should sit down.
You know how there's been all that stuff in the news lately about garbage Supreme Court Justice Clarence Thomas and his trash fire loon wife Ginny taking millions of dollars in "hospitality" from rightwing gazillionaire Harlan Crow? Turns out, he's not the only one who forgot to disclose one or two little things on his ethics disclosure. Politico went digging through Justice Neil Gorsuch's financial disclosures and, hey, wouldn't ya know, he managed to bury the lede on a land deal which came together approximately five minutes after he was confirmed to the nation's highest court.
See, Gorsuch was a partner in an LLC called The Walden Group which had been trying to sell a 3,000-square-foot vacation house on 40 acres in rural Colorado since 2015. And right after he got confirmed in 2017, a buyer appeared with a sack of cash to take the property off their hands.
And who was the buyer?
Oh, just Brian Duffy, the head of law firm Greenberg Traurig's 600-lawyer litigation division which argues cases at the Supreme Court on the regular. NBD.
Now, to be scrupulously fair, Duffy says he didn't know that Gorsuch was a minority owner in the property until after he made an offer, which was substantially below list price. And when Duffy found out, he ran it through Greenberg's ethics department, which cleared him to go through with it. Yes, Greenberg did represent North Dakota in a 2022 case in which Gorsuch joined the Court's conservatives to gut the EPA's ability to regulate carbon emissions. But, let's be honest, he was going to do that anyway.
There's no evidence that Gorsuch treated Greenberg's clients more favorably than anyone else arguing to gut the federal government's ability to solve problems for the American people. The problem, however, is that Gorsuch buried the deal in his disclosure form by reporting that he'd received between $250,001 and $500,000 from Walden Group, LLC, and nothing else. And while there's basically no debate that what Justice Thomas did was way over the line, Gorsuch's fudge may or may not violate the flimsy disclosure requirements for federal judges.
And that, along with the total lack of accountability, is the problem. We entrust the judiciary to police itself, and that is clearly not working.
Another case in the news this week involves Judge Matthew Kacsmaryk, that ghoul in Texas who tried to rescind the FDA's authorization of mifepristone 23 years after the fact. CNN reports that most of Kacsmaryk's wealth consists of between $5 and $25 million of "common stock" in a company which he will not name.
“It is a private corporation headquartered and operated outside of Texas, outside the Fifth Circuit. It has never been a party in any case in the Northern District of Texas,” he wrote. “The Clerk’s Office has the name of the entity, actively screens incoming cases, and I would be automatically recused from any cases involving this entity.”
It's pretty clear from Kacsmaryk's prior disclosures that the company is the Publix supermarket chain. And while there are exceptions to disclosure requirements if the information would reveal personal information that might jeopardize the security of the judge or their family, it's hard to see how this would qualify. Nor is it clear how having the clerk screen for conflicts is an appropriate substitute for public disclosure requirements. The whole point of mandatory reporting is to allow litigants coming before the judge to decide for themselves if they should ask for a recusal. That's not a decision which can or should be be outsourced to a bureaucrat who works in the courthouse — i.e. for the judge — doing a key word search. And the fact that Kacsmaryk, Gorsuch, and Thomas are so blithe about it demonstrates exactly why we need to beef up the ethics regulations governing the federal judiciary.
Meanwhile, Senate Judiciary Chair Dick Durbin has rightly taken a lot of flak this week for refusing to demand that Justice Thomas come in and explain himself, telling NBC's Chuck Todd, “I think I know what would happen to that invitation. It would be ignored."
“Why this Supreme Court, these nine justices, believe they are exempt from the basic standards of disclosure, I cannot explain. And I think chief justice should appear before our committee and explain something or explain the changes that he’s going to make,” he said of his decision to invite Chief Justice John Roberts in to do an in-person rendition of the dog in the "This is Fine" meme.
Durbin seems to believe that shaming Roberts will do the trick: "This is John Roberts’s court. [...] History is going to judge the Roberts Court by his decision as to reform, and I think this is an invitation, on May 2, for him to present it to the American people.”
It won't. But shouting about it at least robs him and his brethren of their ability to pretend to be sacred monks in black robes, above petty partisan concerns and self-enrichment. Bang those pots!
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