March 20, 2024

Democracy Dies with a Tap of a Gavel

The Justice is truly blind

“The closer the collapse of the Empire, the crazier its laws are.” Marcus Tullius Cicero

Yesterday was one hell of a hectic day for law enforcement officers in Texas, Supreme Court experts and most of all, unknown number of people whose only guilt is not having white skin. At 2:05pm EST, yesterday, law enforcement officers in Texas were given green light to arrest any person in the state they believe crossed illegally. Moreover, Texas judges were granted power to order people to walk back into Mexico or face a threat of up to 20 years in prison, even in cases where the person may have federal protections.

Texas Senate Bill 4 (commonly known as SB4), a blatantly unconstitutional "show me your papers" law that puts a target on every non-white person in Texas back, was officially in effect until 10:44pm EST. The bill makes undocumented immigration a crime in the state of Texas and fully authorizes law enforcement to arrest anyone they suspect for any reason of being an undocumented immigrant. What’s more, the detainee must prove in court that they are in fact not an undocumented immigrant. The bill simply ignores the existence of both federal and international laws, treating asylum-seekers as undocumented immigrants. If your skin is not pasty white or if you have even a hint of accent, I suggest avoiding the Lone Star state.

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If your head is not spinning yet, let me sum up the last 48 hours1:

• Before 5:00pm EST, Monday, March 18: Not in effect

• From 5:00pm EST to 5:04pm EST: In effect

• From 4:04pm EST Monday, March 18 to 2:05pm EST, Tuesday, March 19th: Not in effect

• From 2:05pm to 10:44pm: In effect

• Currently: Not in effect

The case is likely going back to the Supreme Court2 but according to Steve Vladeck, one of the preeminent constitutional scholars, “Next steps for SB4: Fifth Circuit argument on Texas’s motion for a stay pending appeal. The panel will presumably rule on that quickly, and whoever loses (probably Texas, given tonight’s news) *could* ask the SCOTUS to intervene—or wait for the merits argument on April 3. Key: SB4 now remains on hold *indefinitely*—unless and until one of three things happens:

1. Fifth Circuit issues stay (very unlikely);

2. SCOTUS issues stay (very unlikely);

3. Fifth Circuit reverses injunction on merits (harder to predict).

The other point is that once again, the 5th Circuit is allowed to temporarily overturn along-standing federal immigration laws. Even if SCOTUS eventually does strike these down. This happened a few times recently, first with the Remain in Mexico law in 2021, then with the enforcement priorities in 2022, and most recently with the razorwire wall at Eagle Pass park. In all these cases, SCOTUS refused a request from Biden administration to block enforcement of unprecedented decisions: ordering DHS to restart Remain in Mexico, stripping the DHS Secretary of authority to issue enforcement priorities, prohibiting federal Border Patrol agents from entering Eagle Pass park, only to eventually rule in Biden's favor months later.

It’s not even a farce. It's a show of power3.

Just a couple of weeks ago, Elie Mystal wrote:

“I view the Supreme Court like Batman views Superman: a powerful alien untethered from the laws of physics who is a threat to freedom. These people are not our friends, and they must be stopped and held accountable by the people.”

Elie’s anger at the High Court for delaying Donald Trump’s January 6th trial in Washington, DC led him to postulate that the Court must be stopped. He is not the only one up in arms. With that decision the Supreme Court had essentially agreed to consider whether a US citizen is above the law – a proposition that, if affirmed, would destroy the moral, legal, and political foundations of the Court itself.

Randall Eliason, a crime professor, a columnist for NYT and WaPo, and a former federal prosecutor, wrote on the occasion: “the Trump prosecutions will proceed, but remember - it has never been the job of DOJ or the justice system to save the country from Trump. The voters need to do that. And if they choose to put him back in office , we will have the country we deserve.”

Bollocks!

That’s not to say that Prof. Eliason is right in his premise either, taking in every decision or lack thereof by this Court, as well as the lackluster approach by Merrick Garland-led DOJ, I am not sure why or how anyone can have certainty that Trump’s criminal prosecutions will go on. Eliason’s view is counterbalanced by transparancy and honesty of his colleague, Lee Kovarsky, professor of Law at the University of Texas, who wrote: “Amazed how many folks on here are more clear-eyed in their realism about SCOTUS than me, a person who has spent almost 20 years doing 11th-hour litigation in death cases there. I just hadn't appreciated how un-constrained they were by doctrine or calendaring norms!”

It was not just that the Justices decided that it’s prudent to hold a public discourse on whether United States President actually has monarchical “rights”. It is the speed with which the Court reached this decision coupled with the measured pace of the decision itself - it abundantly clear that these are political decisions by the majority of the Supreme Court Justices. Let’s do one more timeline:

• December 22nd: SCOTUS declines to hear Trump immunity claim

• February 6th: U.S. Court of Appeals for the D.C. Circuit rules no immunity

• February 12th: Trump appeals to SCOTUS

• February 28th: SCOTUS takes case, sets oral arguments for April 22nd

Mind you, the February 12th decision by the D.C. Circuit court was hailed by George Conway, who is no stranger to facing the High Court, as an “airtight ruling…. that deserves to be taught in law schools for centuries.” Yet, here we are, reading Trump’s brief4 and realizing that the court’s decision to delay Trump’s trial, functionally indefinitely, is indefensible and a clear indication of political posturing instead of the swift application of justice. Remember that the 1974 the Supreme Court, which included four Nixon-appointed Justices, produced a quick decision on Nixon's tapes because they knew it was in the national interest.

Representative Jamie Raskin, probably said it best:

That’s before we even consider that fact that Clarence Thomas is fully participating in in this case, as well as in the 14th Amendment case based on the Colorado Supreme Court ruling. There does not seem to be all that much outrage about it and yet, the 14th Amendment’s case core decision that only Congress has the power to disqualify candidates from the ballot was a 5-4 decision, not a 9-0 decision and the refusal of spouse of a known participant in the attempted coup against the United States to recuse him suddenly is a choice between democracy and fascism on the ballot in November.

I suppose we should be thankful that the Supreme Court did not say Trump is not an insurrectionist, thus keeping him as an adjudicated insurrectionist, in addition to being an adjudicated rapist5.

The fact that we now know more about Fani Willis’ and Nathan Wade’s relationship than we do about the crimes committed by Ginni and Clarence Thomas shows exactly what is terribly wrong with today’s media6. You know, if Fani Willis had a conflict of interest because a man might have paid for a meal or a flight, imagine how serious it would be if a Supreme Court justice heard cases related to an election his spouse had tried to overturn. Not to pile on, but Clarence Thomas is truly a vile human being, while unrelated to the story, I must mention that he just hired Crystal Clanton, who was fired from Turning Point USA (!!) over racist texts stating that she “hates black people,” as a Supreme Court clerk.

Does Clarence view his job as “trolling the libs,” because he is untouchable?.

During the four years of Trump administration’s nightmarish policies, I’ve strongly believed that the system, the proverbial “deep state” but especially the Judiciary will hold and “save the Republic.” To a large degree, I was right, but now it is easy to falter in that belief, wondering if the institutions have deteriorated or simply reached the boiling point. No, it's not that the institutions aren't strong enough to stop the fascism, it's that they're unwilling. That's the big difference, and far too many refuse to admit it or to accept it.

States may not unilaterally disqualify Donald Trump from the ballot, the Supreme Court rules unanimously. The Court's liberals wrote a concurrence agreeing with the outcome but sharply disputing the conclusion that only Congress can act. “In the course of unnecessarily making this decision when they were not even presented by the case, the five-Justice majority effectively decided not only that the former president will never be subject to disqualification, but that no person who ever engages in an insurrection against the Constitution of the United States in the future will be disqualified under the Fourteenth Amendment’s Disqualification Clause — as the concurrence of Justices Sotomayor, Kagan, and Jackson witheringly explain.” wrote retired conservative Judge Luttig.

It would be ironic that the Court packed with self-proclaimed originalists suddenly decided to find a new way of interpreting the original text. Perhaps it’s my English degree, but I am reading the actual text as the exact opposite of the High Court.

The court’s opinion made no findings at all about January 6th or Trump’s role in it, some went as far as proclaim that the decision revealed new fractures among the justices despite its “unanimous” facade. Some started semi-conspiracy theory regarding a grand bargain made by the liberal justices. The idea that we have, as Sarah Kendzior calls it, "a transnational crime syndicate masquerading as a government" propagating the belief that our institutions will save us from the slide toward authoritarianism and fascism in America is designed to keep the populace complacent and docile is again gaining traction.

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The reality of it is quite simple - the Supreme Court really hates the Reconstruction amendments. All of them and it’s very transparent why.

The assault on the Reconstruction amendments and our rights in general started in 2000 when they blatantly removed our ability to democratically govern ourselves. The court has been taking that away from us, fairly consistently, for the past 24 years, ever since it anointed George W. Bush as President, despite the fact that Bush lost the popular vote and likely would have lost the electoral count had all the votes (both undervotes and overvotes) been recounted in Florida. Since that day, in almost quarter of a century, the High Court, issued a string of rulings meant to help Republicans achieve their long-standing political goals. From voting rights to bodily autonomy, affirmative action, labor laws, gun laws, environmental regulations, financial regulations, transgender care… it has been years since you needed to know anything about the law to be able to predict the Supreme Court’s rulings. The only thing you needed to know was the official position of the Republican Party and you’d be batting close to a thousand predicting SCOTUS decisions. Most, if not all, of these are ones Republicans cannot enact through elections and legislation, you can see the same attempts on state level across almost every single red state.

When I first decided to write about the SCOTUS, it happened to be the same day that Mitch McConnell announced his retirement. Reading the news of Mitch’s retirement juxtaposed against the SCOTUS decision, one could not avoid thinking that Moscow Mitch did not steal the Supreme Court for nothing. McConnell, for all the accolades he receives for his gamesmanship in the Senate and the Capitol, he was merely a blunt instrument: ruthless, but not cunning or imaginative. Speaker Rayburn famously said “any jackass can kick down a barn but it takes a good carpenter to build one.” McConnell was no carpenter (neither is Schumer). Yes, in all likelihood, his replacement, whether it is Senate Majority or Minority leader, will be worse in every possible sense but lest not forget what a piece of human garbage responsible for making millions of Americans' lives tangibly worse on a daily basis McConnell was.

Then there's this from a 2019 New York Times Magazine profile by Charles Homan, seems even more relevant today:

This man, more than any individual, is why Roe is gone. This man is the reason Trump is free. This man is the reason former confederate states are now openly enacting Jim Crow era laws and suppressing non-white voting.

McConnell was awful.

Yes, he looks quite favorably if compared to the current crop of the MAGA nutjobs in Senate, from Josh Hawley to Coach Tuberville, not to mention the steroid-level crazy in the House, like Matt Gaetz, Lauren Boebert, Marjorie Taylor Greene… but he is the one who perverted our system more than any other and to a large degree responsible for why we are here and why we even know who the names in this paragraph are in the first place! Think about it, had McConnell retired in January 2021, leading the conviction of Donald Trump, his legislative legacy would have been about the same as it is now and he could have said that he saved the country from the anti-democratic threat. Yes, but the Judges!!!

The judges that overturned Roe v. Wade.

The judges that on March 15th decided that they won't intervene to let a college student group host a drag show. The student group may not host a drag show because Judge Matthew Kacsmaryk has decided that drag is not expression under the First Amendment. This is not a state law, and it is not a final ruling on the merits, it is a request for an injunction pending appeal, but it is still an extremely disappointing order from the court, particularly given the lack of any noted dissents (background).

The judges that February 16th ruled that IVF embryos are protected under wrongful death of a minor act. But it gets worse, much, MUCH worse.

Read this carefully. This is the Chief Justice of the Supreme Court of Alabama quoting the Bible for a judicial decision recognizing fertilized and frozen embryos as "children." This is absolutely insane theocracy and this is coming for all of us if we don't stop it.

During a recent interview with a QAnon conspiracy theorist, he also indicated that he is a proponent of the Seven Mountain Mandate7, which calls on Christians to impose fundamentalist values on all aspects of life. The people who call Toni Morrison novels "pornography" are the same people who want to give frozen embryos more rights than women.

By the way, after the Alabama Supreme Court ruling, many Republicans have been declaring that they "support" IVF. Let's make something very clear: these statements are ABSOLUTELY MEANINGLESS. The Alabama Supreme Court did not ban IVF, it rather imposed their theological beliefs that frozen embryos used in IVF treatments are protected with the same rights as children. Trump, for example, said: "I strongly support the availability of IVF for couples who are trying to have a precious baby." The problem is, once you declare that frozen embryos deserve the same legal protections as infants, doctors are required to:

• Create only one embryo at a time, drastically reducing the chances for a successful pregnancy

• Store extra embryos in perpetuity ($1000/year), drastically increasing costs

In this Congress, 124 House Republicans, including Speaker Mike Johnson, are co-sponsoring the Life at Conception Act that states "the terms 'human person' and 'human being' include each and every member of the species homo sapiens at all stages of life, including the moment of fertilization." Republican Study Committee budget specifically endorses the idea that embryos have the full legal rights of persons under the 14th Amendment.

Of course, this is just the beginning. The Heritage Foundation, the lead organizer of Project 2025, wants the next Republican president to give them control over approving and withdrawing approval of drugs. They are coming for birth control via the FDA, regardless of the courts.

What’s worse, when called out on this, the response is even worse:

It’s not just the recrational sex that is at risk. In Missouri, a pregnant woman by law is not allowed to get divorced. Tennessee governor signed a bill allowing public officials to refuse performing same-sex marriages: Obergefell might as well be on life support.

The other day, the Dwight D. Opperman Foundation announced the 2024 recipients of the Justice Ruth Bader Ginsburg Leadership Award. The winners: businessman Elon Musk, right-wing media kingpin Rupert Murdoch, lifestyle guru Martha Stewart, felonious Wall Streeter turned philanthropist Mike Milken, and actor Sylvester Stallone. The Foundation hailed these “iconic individuals” for their “extraordinary achievements.” Veteran corporate lawyer Brendan Sullivan, who was Oliver North’s attorney during the Iran-contra scandal and who now chairs the RBG Award, noted, “The honorees reflect the integrity and achievement that defined Justice Ginsburg’s career and legend.” And the chair of the foundation, Julie Opperman, a big Republican donor and the widow of publishing titan Dwight Opperman, who once was CEO of Thomson Reuters, remarked that the award embraces “the fullness of Justice Ginsburg’s legacy.”

If the Supreme Court is going to act like a super-legislature, enacting each and every item on the Republican white Christian nationalist agenda, then seeing literal Nazis like we did on the streets on Nashville and College Station last months will become a regular occurrence in our daily lives.

Until these nine people with limitless power are held accountable to us, the people and to the Constitution that they are supposed to uphold, as someone pointed out on Twitter, we might as well try to convince President Obama to repeatedly keep slapping Trump on the face with Samuel L. Jackson, perfectly enunciating “Presidential immunity motherfucker!!!8”