Supreme Court

Welcome to our new plutocracy: Citizens United has effectively destroyed the First Amendment

Welcome to our new plutocracy: Citizens United has effectively destroyed the First Amendment

(Credit: CNN)


In today’s so-called “democratic” election process, Big Money doesn’t talk, it roars — usually drowning out the people’s voice.

Bizarrely, the Supreme Court decreed in its 2010 Citizens United ruling that money is a form of “free speech.” Thus, declared the learned justices, people and corporations are henceforth allowed to spend unlimited sums of their money to “speak” in election campaigns. But wait — if political speech is measured by money then by definition speech is not free. It can be bought, thereby giving the most speech to the few with the most money. That’s plutocracy, not democracy.

Sure enough, in the first six months of this presidential election cycle, more than half of the record-setting $300 million given to the various candidates came from only 358 mega-rich families and the corporations they control. The top 158 of them totaled $176 million in political spending, meaning that, on average, each one of them bought more than a million dollars’ worth of “free” speech.

Nearly all of their money is backing Republican presidential hopefuls who promise: (1) to cut taxes on the rich; (2) cut regulations that protect us from corporate pollution and other abuses of the common good; and (3) to cut Social Security, food stamps and other safety-net programs that we un-rich people need. The great majority of Americans adamantly oppose all of those cuts — but none of us has a million bucks to buy an equivalent amount of political “free” speech.

It’s not just cuts to taxes, regulations and some good public programs that are endangered by the Court’s ridiculous ruling, but democracy itself. That’s why a new poll by Bloomberg Politics found that 78 percent of the American people — including 80 percent of Republicans — want to overturn Citizens United. But those 358 families, corporations and Big Money politicos will have none of it. In fact, America’s inane, Big Money politics have become so prevalent in this election cycle that — believe it or not — candidates have found a need for yet another campaign consultant.

Already, candidates are walled off from people, reality and any honesty about themselves by a battalion of highly specialized consultants controlling everything from stances to hairstyle. But now comes a whole new category of staff to add to the menagerie: “donor maintenance manager.”

The Supreme Court’s malevolent Citizens United decision has produced an insidious platinum class of mega-donors and corporate super PACs, each pumping $500,000, $5 million, $50 million — or even more — into campaigns. These elites are not silent donors, but boisterous, very special interests who are playing in the new, Court-created political money game for their own gain. Having paid to play, they feel entitled to tell candidates what to say and do, what to support and oppose. A Jeb Bush insider confirms that mega-donors have this attitude: “Donors consider a contribution like, ‘Well, wait, I just invested in you. Now I need to have my say; you need to answer to me.’”

Thus, campaigns are assigning donor maintenance managers to be personal concierges to meet every need and whim of these special ones. This subservience institutionalizes the plutocratic corruption of our democratic elections, allowing a handful of super-rich interests to buy positions of overbearing influence directly inside campaigns.

Donors at the million-dollar-and-up level are expecting much more than a tote bag for their “generous gifts” of “free speech.” Of course, candidates piously proclaim, “I’m not for sale.” But politicians are just the delivery service. The actual products being bought through the Supreme Court’s Money-O-Rama political bazaar are our government’s policies, tax breaks and other goodies — as well as the integrity of America’s democratic process. To help fight the injustice of the Supreme Court’s Citizen United ruling and get Big Money out of our political system, go

H/t: DB

Justice Kennedy Says Public Officials With Religious Objections To Marriage Equality Should Resign

(Image via Screen Grab)


“The rule of law is that, as a public official in performing your legal duties, you are bound to enforce the law.” – Supreme Court Justice Anthony Kennedy

Justice Kennedy thinks Kim Davis should quit.

Though he never mentioned her by name, Justice Anthony Kennedy, a conservative jurist appointed by Ronald Reagan, said very clearly that government officials like Ms. Davis, who find they have a moral objection to complying with a law, have only one choice: follow the law or resign.

Justice Kennedy, who has been the deciding vote in several recent gay rights decisions, made his pronouncement Wednesday at a Harvard Law School forum. A student questioner asked him whether government officials who disagree with the Supreme Court decisions on marriage equality or abortion have the “authority to act according to her own judgment” of whether the law is moral.

While Justice Kennedy noted that officials who are required to “enforce a law that they believe is morally corrupt” face “difficult moral questions,” he insisted they do not have a Constitutional right to refuse to comply with the law. ThinkProgress reports that the justice alluded to the historical fact that very few German judges had the courage to resign from the Nazi government because they had moral objections, suggesting to the audience that people who resign for matters of conscience should be admired.

“Great respect, it seems to me, has to be given to people who resign rather than do something they view as morally wrong, in order to make a point,” said Justice Kennedy.

davis_and_davis.jpgBut, according to Justice Kennedy, respect is where the appreciation ends. The law does not recognize a right to a religious objection by government officials like Kentucky clerks Kim Davis and Casey Davis (photo right) who have refused to issue marriage licenses to same-sex couples in the wake of the Supreme Court’s Obergefell decision.

 “The rule of law is that, as a public official in performing your legal duties, you are bound to enforce the law.” Justice Kennedy told the Harvard students.

He left no wiggle room for the “religious accommodation” the renegade Kentucky clerks are demanding for themselves.

I wonder if Kim Davis ears were burning?

Here is Justice Kennedy’s appearance at Harvard University last week. The discussion about moral objections by government officials comes at the end of the event, at the 51:50 mark.

Justice Kennedy’s photo is from  YouTube
Kentucky clerks photo is from Joyce Ostrander via Twitter

H/t: DB

Two Major Voting Rights Victories From The Supreme Court’s Last Day



On Monday, the U.S. Supreme Court voted 5 to 4 to uphold the right of states to set up independent, non-partisan committees to draw the district maps that determine seats in Congress. Writing the opinion, Justice Ruth Bader Ginsberg said allowing voters to choose how the maps are created follows “the animat­ing principle of our Constitution that the people them­selves are the originating source of all the powers of government.”

She added that “nonpartisan and bipartisan commissions generally draw their maps in a timely fashion and create districts both more competitive and more likely to survive legal challenge,” and noted that “conflict of interest is inherent when legislators dra[w] district lines that they ultimately have to run in.”

Because of that conflict of interest, a growing number of states, including Arizona and California, have set up independent map-drawing bodies to combat the scourge of self-interested gerrymandering, in which the party in control of the state legislature draws the maps to keep as many seats as possible “safe” for their lawmakers.

Pamela Goodman, President of the League of Women Voters of Florida, told ThinkProgress that the ruling gives her hope as they fight an ongoing battle against gerrymandering in the Sunshine State.

“Voters should have a voice in their elections,” she said. “What gerrymandering does is allow lawmakers to draw districts that protect their position. It’s the fox guarding the hen house. Voters are not choosing their representatives. Representatives are choosing their voters.”

Advocates are currently waiting for a ruling from the Florida Supreme Court on whether the maps drawn by the Republican-controlled legislature, which include odd-shaped, snake-like districtsthat wrap around disparate minority-heavy neighborhoods — making the surrounding districts majority white. Florida voters passed measures in 2010 requiring redistricting to not favor any political party or water down the influence of racial or language minority groups — a process upheld by today’s Supreme Court ruling. But Goodman says enforcement is still a problem. “Unfortunately, our lawmakers did not adhere to the mandate and we have been in litigation ever since then,” she said.

Had the high court ruled the other way, it could have allowed a third of all the congressional districts in the country to be impacted, potentially causing an entrenchment of Republican power in Congress after future elections. Now, voting rights advocates are hoping more states, especiallyhighly gerrymandered North Carolina, adopt the non-partisan process backed by the Supreme Court.

“We’re hopeful that citizens and legislators alike in other states will push politics aside and create independent bodies to draw truly representative districts after the 2020 census,” said Common Cause President Miles Rapoport.

On Monday, the Court also handed a victory to voting rights advocates by rejecting an attempt by Kansas and Arizona to add a proof of citizenship requirement to federal voter registration forms. The forms already require voters to swear under penalty of perjury that they are citizens.

Leading the charge has been Kansas’ Secretary of State Kris Kobach, who told ThinkProgress in February that he has found “plenty of cases” of non-citizens registering to vote in his state, “sometimes unwittingly.”

Yet recent reports of non-citizen voting have been soundly debunked, while past investigations inFlorida, Arizona, Colorado and Ohio turned up only a tiny handful of cases — less than one-thousandth of a percent.

Civil rights groups like the Election Protection Network say adding a proof of citizenship requirement for voter registration would actually hurt all voters, especially “traditionally disenfranchised groups like poor, minority and elderly voters,” who may lack the proper documents. In Kobach’s own state, the policy prevented thousands of eligible citizens fromcasting a ballot in this past election.

Voting rights advocates are lamenting, however, that the Supreme Court’s rejection of Kobach’s crusade only impacts federal election registration, and he is still free to impose additional requirements for state and local elections.


10 things you need to know today: June 9, 2015

AP Photo/Kirsty Wigglesworth


1.Ex-cop indicted on murder charge for Walter Scott killing
A grand jury indicted former South Carolina police officer Michael Slager on a murder charge Monday for the fatal shooting of Walter Scott after a traffic stop. Scott had a broken taillight. Slager, who is white, shot Scott, who was black, in the back as he ran away after a brief foot chase in North Charleston. A bystander captured the shooting on video. “Today was just an example that if you just keep the faith, even in the darkest times, you’ll see the light,” said Chris Stewart, a Scott family attorney.

Source: CNN

2.HSBC to eliminate 50,000 jobs
HSBC, Europe’s biggest bank, announced Tuesday that it would cut up to 50,000 jobs — about 20 percent of its workforce — through 2017. The restructuring is designed to save $5 billion a year and restore profit growth. Half of the cuts will come from closing branches and other consolidating moves, and the other half from selling HSBC’s Turkey and Brazil operations. “HSBC is a big bank to move and they’re definitely moving in the right direction,” said Chris White of Premier Fund Managers Ltd. in England.

Source: Bloomberg

3.Supreme Court sides with White House on Jerusalem passports
The Supreme Court on Monday struck down a law aiming to let American parents of children born in Jerusalem get passports saying they were born in Israel. The high court’s majority said it was up to the president — not Congress — to make such a call. “Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy,” Justice Anthony Kennedy wrote for five justices in the 6-3 majority. Chief Justice John Roberts Jr. and Justices Antonin Scalia and Samuel Alito Jr. dissented.

Source: The New York Times

4.Pentagon ups estimate of labs that got anthrax to 66
The Pentagon on Monday raised its tally of labs that were mistakenly sent live anthrax samples to 66. The labs that received the anthrax are located in 19 states and Washington, D.C. The new estimate is up from a Wednesday estimate of 51 laboratories in 17 states, Washington, D.C., and three foreign countries. The samples were sent from an Army lab in Utah, where workers irradiated the anthrax. The process was supposed to kill the samples but it did not work.

Source: CBS News

5.Protesters demand firing of Texas cop involved in pool-party incident
Hundreds of protesters on Monday called for the city of McKinney, Texas, to fire a police officer caught on video throwing a black teenage girl in a swimsuit to the ground and drawing his gun after a disturbance at a pool party. Cpl. Eric Casebolt, who is white, has been placed on administrative leave while the department investigates the Fridayincident, which has fueled public anger over the treatment of minorities by police. The NAACP called for an investigation of the McKinney police department.

Source: Reuters

6.Bush picks campaign manager ahead of announcement on 2016 presidential race
Former Florida governor Jeb Bush (R) shook up his staff on Monday, a week ahead of his expected June 15 announcement of his 2016 presidential bid. Bush picked Republican strategist Danny Diaz as his campaign manager. That job had been expected to go to another aide, David Kochel. Diaz’ promotion was seen as an indication that the exploratory phase of Bush’s bid did not go as well as planned. He has raised more than $100 million since December but fallen in polls as the GOP field grew.

Source: The Washington Post

7.Cleveland citizens to ask court for arrest of officers in Tamir Rice killing
Cleveland community leaders plan Tuesday to ask a judge to order the arrest of the police officers involved in the November killing of Tamir Rice, a black 12-year-old shot dead while carrying a toy gun in a park. The case was turned over to the Cuyahoga County prosecutor last week to determine whether to put it before a grand jury, but a little-used Ohio law lets people with “knowledge of the facts” file affidavits with the court and request a hearing, bypassing local prosecutors and secretive grand juries.

Source: The New York Times

8.South Korea reports seventh death in MERS outbreak
South Korea reported eight new cases of Middle East Respiratory Syndrome (MERS) on Tuesday, bringing the total number of people infected in the outbreak to 95. The country’s health ministry also said a seventh patient had died. South Korean President Park Geun-hye has ordered a national campaign to stop the disease from spreading. South Korea’s outbreak — second only to Saudi Arabia’s — began in May when an infected businessman returned from the Middle East.

Source: Reuters

9. Apple unveils its streaming music service
Apple on Monday officially announced the impending launch of its own streaming service, Apple Music. Subscribers will be able to stream songs from the iTunes Store, and access curated playlists and a 24/7 global radio station called Beats 1. Apple, which acquired nascent streaming service Beats Music from Jimmy Iovine and Dr. Dre one year ago, will introduce the service in 100 countries on June 30. Users will get it free for three months, then pay $9.99 a month, or $14.99 a month for families of up to six.

Source: The New York Times, Pitchfork

10.Arizona, Houston, and Colorado make shortstops first 3 MLB draft picks
The Arizona Diamondbacks took Vanderbilt shortstop Dansby Swanson in the first pick of the Major League Baseball draft on Monday night. The Houston Astros and Colorado Rockies also picked shortstops in the No. 2 and No. 3 picks, marking the first time shortstops had gone one-two-three in the draft. Houston took LSU’s Alex Bregman, and Colorado took Florida high schooler Brendan Rodgers. In all, eight shortstops went in the 36-pick first round, tying a record.

Source: The Associated Press

Harold Maass

Antonin Scalia lives in a fairy-tale world: His delusional Obamacare theories will make people die

Antonin Scalia lives in a fairy-tale world: His delusional Obamacare theories will make people die

Antonin Scalia (Credit: AP/Manuel Balce Ceneta)


“Intellectual” justice thinks Congress will fix ACA. Really? If exchanges fall apart, people will lose coverage

By now the nine justices on the Supreme Court have reached their decision on the King v. Burwell lawsuit. It remains a secret until the court hands down its opinion in June.

The plaintiffs are four Virginia residents who have challenged the provision in the Affordable Care Act (ACA) that authorizes the Department of Health and Human Services to establish a Federal Health Care Insurance Exchange as a fallback for states that elected not to establish state exchanges.

If they prevail, an estimated 9 million Americans in 34 states that did not set up exchanges—in most cases because their governments objected to the ACA itself—lose the federal subsidies that make insurance coverage purchased on the federal exchange affordable.

The litigation’s perverse contradictions begin with the plaintiffs. To get standing to sue, their incomes had to be low enough to qualify for IRS tax subsidies provided through the ACA. Although they qualify, they do not want subsidies. Refusing subsidies, they claim they are illegally “coerced” into paying a small ($95) tax penalty for not buying insurance they cannot afford without subsidies.

Again, perverse.

If they prevail, more than 319,000 of their fellow Virginians will lose subsidies they currently receive. Absent the subsidies, they will probably be unable to afford health care coverage.

Another perverse contradiction. There is no state exchange in Virginia, because the GOP majority in the General Assembly refused to establish one, leaving those 319,000 Virginians to purchase health care coverage on the federal exchange. One logical resolution to the impending insurance crisis would be to allow voters in Virginia—and in the other states that have refused to set up exchanges—to go to the ballot box and oust the legislators who rejected a state exchange.

But the crisis is not political. It is actuarial. It is immediate. And it is much larger than Virginia.

“[A ruling for the plaintiffs] precipitates the insurance market death spirals that the statutory findings specifically say the statute was designed to avoid,” said Justice Sonia Sotomayor during oral arguments.

The “death spiral” begins with the mass cancellation of subsidized policies that will follow a ruling against the federal exchange. Only the sickest individuals, who dare not risk going uncovered, will remain insured. The departure of healthy individuals will drive premiums higher, which will encourage more and more people to pay the tax penalty rather than pay soaring insurance premiums.

The loss of an anticipated 9 million healthier individuals who purchased coverage through the federal exchange will reverberate through all the states until the entire insurance system is no longer viable.

Yet another contradiction was articulated by Justice Antonin Scalia. His questions in printed transcripts are always unequivocal. What one misses by not sitting in the courtroom is his anger, contempt for counsel with whom he disagrees, and rank sarcasm.

“What about, what about Congress?” Scalia asked. “You really think Congress is just going to sit there while all of these disastrous consequences ensue … Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is it not going to happen here?”

When Solicitor General Donald Verrilli responded, “Well, this Congress, Your Honor,” Scalia cut him off.

“I don’t care what Congress you’re talking about. If the consequences are as disastrous as you say, so many million people without insurance and what not, yes, I think this Congress would act.”

Justice Clarence Thomas claims he never reads a newspaper. (He also hasn’t asked a question from the bench since February 22, 2006.) Antonin Scalia is worldly, informed and engaged.

He was probably aware that exactly 29 days before the Court heard arguments on King v. Burwell on March 4, the Republican-controlled House voted to completely repeal the Affordable Care Act. If he missed that 239-186 vote, he must know something about the 59 House votes since 2011 that would have repealed part or all of the Affordable Care Act.

Even if the House were to decide to “fix” the ACA, which would require changing one dependent clause in a 2,700-page statute, it could not do so.

One week before oral arguments, House Speaker John Boehner was embarrassed by his own caucus when a bill he brought to the floor to fund the Department of Homeland Security for one week failed for lack of Republican support.

The Supreme Court decision that comes down at the end of next month is decisive and of enormous consequence. If a majority of the justices rule against the ACA, neither the Congress nor the 34 state legislatures that refused to create state exchanges can act in time to save the health care system.

Subsidies will end immediately.

And the death spiral will begin in July.

Jeb Bush’s Favorite Author Rejects Democracy, Says The Hyper-Rich Should Seize Power

Colonial British monarchs would find a lot to like in Charles Murray's new book against democracy

Pre-Revolutionary kings would find a lot to like in Charles Murray’s new book against democracy | CREDIT: PUBLIC DOMAIN VIA WIKIPEDIA


At the height of 2011’s debt ceiling crisis, then-Senate Minority Leader Mitch McConnell (R-KY) offered a candid explanation of why his party was willing to threaten permanent harm to the U.S. economy unless Congress agreed to change our founding document. “The Constitution must be amended to keep the government in check,” McConnell alleged. “We’ve tried persuasion. We’ve tried negotiations. We’ve tried elections. Nothing has worked.”

The amendment McConnell and his fellow Republicans sought was misleadingly named the “Balanced Budget Amendment” — a name that was misleading not because it was inaccurate, but because it was incomplete. The amendment wouldn’t have simply forced a balanced budget at the federal level, it would have forced spending cuts that were so severe that they would have cost 15 million people their jobs and caused “the economy to shrink by about 17 percent instead of growing by an expected 2 percent,” according to the Center for Budget and Policy Priorities. It was, in essence, an effort to permanently impose Tea Party economics on the nation, and to use a manufactured crisis to do so.

Few politicians are willing to admit what McConnell admitted when he confessed that elections have not “worked” to bring about the policy Republicans tried to impose on the nation in 2011. Elected officials, after all, only hold their jobs at the sufferance of the voters, and a politician who openly admits that they only believe in democracy insofar as it achieves their desired ends gives the middle finger to those voters and to the very process that allows those voters to have a say in how they are governed.

Charles Murray, an author who GOP presidential candidate Jeb Bush recently named first when he was asked which books have had a big impact upon him, is not an elected official, so he is free to rail against democracy to his heart’s content. And that is exactly what he does in his new book, By The People: Rebuilding Liberty Without Permission.

Pay no attention to the title. Government “by the people” is the last thing Murray cares to see. Murray admits that the kind of government he seeks, a libertarian fantasy where much of our nation’s regulatory and welfare state has been dismantled, is “beyond the reach of the electoral process and the legislative process.” He also thinks it beyond the branch of government that is appointed by elected officials. The Supreme Court, Murray claims, “destroyed” constitutional “limits on the federal government’s spending authority” when it upheld Social Security in 1937. Since then, the federal government has violated a “tacit compact” establishing that it would not “unilaterally impose a position on the moral disputes that divided America” (Murray traces the voiding of this compact to 1964, the year that Congress banned whites-only lunch counters).

King George’s Revenge

Murray is probably best known for co-authoring 1994’s The Bell Curve, a quasi-eugenic tract which argued that black people are genetically disposed to be less intelligent that white people. Yet, while The Bell Curvepractically spawned an entire field of scholarship devoted to debunking it,” Murray remains one of the most influential conservative thinkers in America today.

Dr. Murray’s pre-Bell Curve work shaped the welfare reforms enacted in the 1990s. Former Republican vice presidential candidate Paul Ryan cited Murray in 2014 to claim that there is a culture of laziness “in our inner cities in particular.” Last April, when Jeb Bush was asked what he liked to read, he replied “I like Charles Murray books to be honest with you, which means I’m a total nerd I guess.”

So when Murray speaks, powerful and influential men (and his acolytes are, almost invariably, men) listen, including men who shape our nation’s fiscal policy and men who could be president someday.

By The People, however, rejects outright the idea that Murray’s vision for a less generous and well-regulated society can be achieved through appeals to elected officials — or even through appeals to unelected judges. The government Murray seeks is “not going to happen by winning presidential elections and getting the right people appointed to the Supreme Court.” Rather, By The People, is a call for people sympathetic to Murray’s goals — and most importantly, for fantastically rich people sympathetic to those goals — to subvert the legitimate constitutional process entirely.

“The emergence of many billion-dollar-plus private fortunes over the last three decades,” Murray writes, “has enabled the private sector to take on ambitious national or even international tasks that formerly could be done only by nation-states.” Murray’s most ambitious proposal is a legal defense fund, which “could get started if just one wealthy American cared enough to contribute, say, a few hundred million dollars,” that would essentially give that wealthy American veto power over much of U.S. law.

Murray, in other words, would rather transfer much of our sovereign nation’s power to govern itself to a single privileged individual than continue to live under the government America’s voters have chosen. It’s possible that no American has done more to advance the cause of monarchy since Benedict Arnold.

Madison’s Ghost

One of the heroes of By The People is James Madison, or, at least, a somewhat ahistoric depiction of Madison favored by Murray. Madison, as Murray correctly notes, favored an interpretation of the Constitution that would have made much of the modern regulatory and welfare state impossible (other members of the founding generation, including George Washington, interpreted the Constitution much more expansively than Madison). Thus, Murray states in his introduction, “[i]f we could restore limited government as Madison understood it, all of our agendas would be largely fulfilled.” Murray even names his proposal for a billionaire-funded organization intended to thwart governance the “Madison Fund.”

In Murray’s narrative, Madison becomes a Lovecraftian deity — dead, but not entirely dead, and still capable of working ill in American society. In his house at Montpelier, dead James Madison waits dreaming.

The real James Madison would be shocked by this suggestion that his dead-but-dreaming tentacle could reach into the future and re-instigate long-settled battles over the Constitution. Needless to say, the view Murray attributes to Madison — the view that, among other things, would lead to Social Security being declared unconstitutional — did not prevail in American history. And Madison, unlike Murray, was reluctant to displace well-settled constitutional law. As a congressman, Madison opposed the creation of the First Bank of the United States on constitutional grounds. Yet, as president, Madison signed the law creating a Second Bank. He explained that the nation had accepted the First Bank, and he viewed this acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”

Madison, it should also be noted, admitted late in life that his reading of the Constitution was not consistent with the document’s text. Nevertheless, he argued that “[t]o take [the Constitution’s words] in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

To his credit, Murray acknowledges that undoing the entire post-New Deal state is not a realistic goal. The Supreme Court, he laments, “never overturns a decision like Helvering,” the 1937 case upholding Social Security, “because such a ruling would not be obeyed and the Court’s legitimacy would be shattered.” Yet the limits Murray would impose on the federal government are simply breathtaking. All employment law, according to Murray, must be subject to the strictest level of constitutional scrutiny. So must all land use regulation, and all laws that fall into vague categories Murray describes as regulations that “prescribe best practice in a craft or profession” or that “prevent people from taking voluntary risks.”

If these limits were actually imposed on the federal government, the minimum wage, overtime laws, most environmental protections and financial reforms, many worker safety laws and even, potentially, anti-discrimination laws would all fall by the wayside.

The Koch Veto

To impose these limits on society, Murray claims that his Madison Fund can essentially harass the government into compliance. The federal government, Murray claims, cannot enforce the entirety of federal law “without voluntary public compliance.” Federal resources are limited, and only a small fraction of these limited resources have been directed towards enforcement. Thus, Murray argues, by simply refusing to comply with the law and contesting every enforcement action in court, regulated entities can effectively drain the government’s resources and prevent it from engaging in meaningful enforcement.

The Madison Fund would spearhead this campaign of harassment, defending “people who are technically guilty of violating regulations that should not exist, drawing out that litigation as long as possible, making enforcement of the regulations more expensive to the regulatory agency than they’re worth, and reimbursing fines that are levied.”

There are, of course, a number of practical obstacles to this plan. One, as Murray acknowledges, is the need to find enough people with “billion-dollar-plus private fortune[s]” who are willing to contribute to such a campaign. Another is the need to find lawyers willing to risk their law licenses in order to become pawns in Murray’s game. Rule 11 of the Federal Rules of Civil Procedure requires attorneys to certify that they are not filing court documents “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” The American Bar Association’s (ABA) Model Rules of Processional Conduct provide that a “lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” Admittedly, lawyers have more leeway in criminal cases, but the legal profession generally frowns upon attorneys who engage in the kind of legally meritless harassment Murray proposes.

Nevertheless, Murray’s proposal cannot be dismissed out of hand simply because it is built upon a foundation of frivolous litigation. The first Supreme Court case attacking Obamacare was widely derided as meritless — an ABA poll of legal experts found that 85 percent believed that the law would be upheld. And yet the justices came within a hair of repealing the entire law. The lawyers behind a more recent attack on the Affordable Care Act, King v. Burwell, make demonstrably false claims about the history of the law, and they rely upon a completely unworkable method of interpreting statutes. But that hasn’t stopped at least some members of the Supreme Court from taking this lawsuit seriously. Conservatives simply have more leeway to assert meritless legal arguments than they once did.

Continue reading here…

The Supreme Court Will Hear An Almost Comically Egregious Case Of Race Discrimination

Civil Rights Not Over | (Credit: Shutterstock)


If a man’s life was not potentially at stake in Foster v. Humphrey, a case the Supreme Court announced that it will hear on Tuesday, and if the case did not involve what appears to be complete and utter disregard of the Constitution’s prohibitions on race discrimination, then the facts of this case would almost be humorous. The prosecution created detailed records suggesting that they engaged in unconstitutional race discrimination. Short of publishing a book entitled “Violating The Supreme Court’s Holding In Batson v. Kentucky Is Our Bag, Baby,” it’s hard to imagine anything more the prosecutors in this case could have done to demonstrate that they disregarded the Constitution.

Timothy Tyrone Foster was convicted of murder and sentenced to die by an entirely white jury after prosecutors struck all four members of the jury pool who were African American. Some time after the trial, Foster’s attorneys obtained the prosecution’s notes on jury selection, and, as his attorneys explain, the notes provide compelling evidence indicating that the black jury pool members were struck because of their race:

The notes reflect that the prosecution (1) marked the name of each black prospective juror in green highlighter on four different copies of the jury list; (2) circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors;” and (5) created strike lists that contradict the “race-neutral” explanation provided by the prosecution for its strike of one of the black prospective jurors.

In most jurisdictions, lawyers in criminal cases are permitted to make a certain number of “peremptory challenges” to potential jury members. As a general rule, these challenges permit a lawyer to remove a juror for any reason they want. In Batson v. Kentucky, however, the Supreme Court held that peremptory challenges may not be used to engage in “purposeful racial discrimination.”

As a practical matter, however, Batson challenges are extraordinarily difficult to win. That’s because Batson permits prosecutors to “articulate a neutral explanation” for why they struck a juror of color when they are accused of engaging in race discrimination, and then leaves the question of whether the prosecutor had racist intent largely up to the trial judge. In nearly every case, the prosecutor will be able to come up with somereason other than race that could ostensibly justify removing a black juror — they claim that one juror in this case, for example, was removed largely because she had a son who was convicted of a felony; another was removed, they claim, in part because she “appeared confused, was very easily swayed, irrational, bewildered, and incoherent.” Unless the trial judge is a mind-reader, it will be difficult for them to assess what the real reason for removing the juror may be.

Which is why the documents uncovered by Foster’s legal team — a team that includes the Southern Center for Human Rights’ Stephen Bright, a giant of the capital defense bar — are so significant. They paint the prosecution in this case as the Keystone Cops of race discrimination, meticulously documenting the one thing that would allow Foster to prove that he actually was a victim of such discrimination. The fact that these records even exist is either a stunning act of incompetence or, more likely, a testament to just how little prosecutors fear a Batson challenge.

Notably, the Georgia court system refused to grant Foster relief even after they were presented by the documents obtained by Bright and the rest of Foster’s legal team.

The Supreme Court rarely takes cases such as this one, where the primary dispute is over the facts of a case and not some abstract legal principle. The fact that they chose to take this case is probably a good sign for Foster, as it suggests that at least four justices were so bothered by the evidence in this case that they were willing to depart from the Court’s normal procedures.

It takes only four justices to agree to hear a case, however, and five justices to rule in Foster’s favor. If Foster cannot find a fifth vote on this Court, a decision against him could destroy what remains of the prohibition on race discrimination in jury selection. After all, if a set of documents documenting the prosecutor’s efforts to identify black members of the jury pool — combined with notes such as “if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining” — aren’t enough to prove race discrimination, then it is unlikely that anything will suffice.


Supreme Court’s grand ruse ends: Finally, Americans see the justices for the political hacks they are

Supreme Court's grand ruse ends: Finally, Americans see the justices for the political hacks they are

John Roberts at his confirmation hearing on Capitol Hill, Sept. 13, 2005 (Credit: Reuters/Kevin Lamarque)


It’s great that we’re no longer pretending the Supreme Court is immune to politics

Cue up the sad David Brooks violin playing softly in the corner of a dark alley at 3 a.m., because Americans have no faith in powerful institutions anymore. One of those institutions would be the marbled shrine atop our third branch of American government, the Supreme Court. A new Associated Press poll shows that “only 1 person in 10 is highly confident that the justices will rely on objective interpretations of the [Affordable Care Act] rather than their personal opinions” in the Court’s impending King v. Burwell decision.

To us, that 10 percent figure seems way too high. As far as we can tell, it’s not 1 in 10 Americans who view our Supreme Court as a neutral collection of jurists who just want to call “balls and strikes,” but 1 American total: Chief Justice John Roberts. And maybe even not him?

The American people, the always trusty American people, have the Supreme Court’s number here. As with so many cases about why the American people have lost trust in a powerful institution, we can look to some of the powerful institution’s recent actions, going back at least to Bush v. Gore through Citizens United and Hobby Lobby and whatever primetime hit job comes next.

That next hit job may come soon in King v. Burwell, which, if ruled for the plaintiffs, would invalidate premium subsidies for those who’ve purchased individual health insurance plans on federally facilitated exchanges. The expected decision based on tea-leaf readings coming out of oral arguments was 5-4 or 6-3 in favor of upholding the subsidies, which tells you a lot about how weak the case is. But there is another possible outcome: 5-4 to strike down the subsidies, because the Supreme Court is ruled by a five-member majority of conservative justices who think that the Affordable Care Act is dumb.

The last time a legal challenge to Obamacare of this breadth made it to the Supreme Court, four justices voted not just to strike down the individual mandate but the entire law as well, because they believed that the law was dumb. They didn’t like it! Get rid of it! John Roberts originally sided with them but then, to the consternation of his conservative colleagues, switched his vote because such a hackish decision would have made the Supreme Court look too hackish. Roberts contented himself merely to gut the hell out of the Medicaid expansion and force the Obama administration to acknowledge that the individual mandate is a tax.

Very few Court watchers are basing their predictions of the King decision on the merits of the case, and rightly so. If it was being decided on the merits of the case, everyone would be betting that it would be upheld 9-0. Does anyone think that’s going to happen? No. It will all come down to how John Roberts, and perhaps Anthony Kennedy, feel about managing the politics. They want to screw over Obamacare but yeeeesh, would that backfire on the Court and conservatives? Would that make life more difficult for the Republican party heading into 2016? On the other hand: Would John Roberts ever eat lunch in Conservative This Town again if he sided with The Libruls to uphold a core component of Obamacare? It’s all about finding the right balance of these competing political considerations. The Democratic and Republican parties rightly recognize the nature of the situation here and have spent months trying to get inside John Roberts’ head. It is what it is.

Let’s consider a more generous version of what’s happened to the Supreme Court of late: that it’s merely followed the broader trend in American politics towards polarization. Antonin Scalia and Ruth Bader Ginsburg might be looking at the same piece of legislation before them but seeing something completely different, so divergent have the liberal and conservative worldviews become. And these are justices who were appointed a generation ago. The next round of justices will have made their careers during this time of high-stakes judicial polarization.

That next round of justices may come very soon, since several Supreme Court justices are approximately one million years old. As Ian Millhiser writes at Think Progress, Rick Perry correctly emphasized the importance of the next presidential election in a speech this weekend:

“Something I want you all to think about is that the next president of the United States, whoever that individual may be, could choose up to three, maybe even four members of the Supreme Court,” Perry told the South Carolina audience. So this election “isn’t about who’s going to be the president of the United States for just the next four years. This could be about individuals who have an impact on you, your children, and even our grandchildren. That’s the weight of what this election is really about.”

I hate the “you have to vote in the next election because of the Supreme Court!” argument. I hate it because it lets the candidates off the hook: they can offer nothing whatsoever to voters and then rely on SCOTUS fearmongering to get out the vote. I also hate it because it’s a very credible argument. There is never going to be another David Souter, or a justice who gets confirmed and then has an ideological shift on the bench. This next presidential election will also be an election for the next generation of the Supreme Court, and it’s no tragedy that most Americans understand this cynical reality.

This Is Why The Supreme Court Is Going To Rule In Favor Of Marriage Equality


Addicting Info

With the Supreme Court set to hear arguments for and against making marriage equality the law of the land, there’s been a lot of analysis, most of it legal, all of it pointless:

Constitutional lawyers, however, are confident enough in the imminent future of nationwide marriage equality to insist that anything less would require an extraordinarily complex – even unprecedented – reading in stark contrast with the court’s recent history and occasionally overt political leanings.

Between the clever way the cases have been set up and the overwhelming pressure to answer to public demand, the end of state gay marriage bans is not just inevitable, court watchers say – the nine justices may be left with no other choice.

The idea here is that ruling against same-sex marriage would require the conservative justices (who else would it be?) to rule against state-sanctioned marriage in general and/or deny that the LGBT community is protected by the 14th Amendment.

But if John Roberts and the other right-wing lunatics on the SCOTUS want to rule against marriage equality while claiming it doesn’t affect gays or marriage, they will. This is the same court that handed down a ludicrously narrow ruling in order to give George W. Bush the presidency. This is the same five conservative “champions” of state’s rights that overruled the laws of Florida for the express purpose of stopping a perfectly legal and completely reasonable recount. Legal precedent means absolutely nothing to them. Logic and reality mean absolutely nothing to them. This is possibly the most partisan and politically motivated court in American history. (Emphasis are mine: KS)

And that is why the Supreme Court will vote to make marriage equality the law of the land.

That might seem counter-intuitive at first. Wouldn’t the conservatives on the bench support Republican legislative efforts to make bigotry and hatred into law? Sure, if they thought that would be in the best interest of the Republican Party. Had this case gone to the Court in 2004, they would have leapt at the chance to codify discrimination against the LGBT community with a smile on their faces and a song in their hearts.

But that was then and this is now.

As always, conservatives were on the wrong side of history. Right now, over 60 percent of the country supports gay rights. Staking your ground as the one who hates homosexuals the most, a necessary strategy for GOP primaries, is becoming a crippling blow in general elections. Just like the average American recoiled from open racism against blacks, they’re now recoiling from open anti-gay bigotry. Even Corporate America has decided that bigotry is bad for business as Indiana’s Republican governor, Mike Pence, found out when he tried to make it legal to discriminate against homosexuals.

Any and every Republican not in a blood-red gerrymandered district that openly espouses anti-gay views is putting himself at risk. Marriage equality has become a cudgel for liberals and Democrats to bash Republicans with. But at the same time, if Republicans drop the crusade against The Gay, their hate-filled base will destroy them. If the Supreme Court rules against marriage equality, Republicans MUST keep fighting that battle and it will cost them in the general elections.

If, on the other hand, the SCOTUS makes marriage equality and LGBT rights the law of the land, Republicans can drop the issue and blame the Court. It’s that simple. Scalia will put up the token stink about it and that will be it. Republicans will still make some noise for an election or two but they’ll quietly drop it in purple states because the issue is a loser.

It’s also worth noting that the Court will not strike down the subsidies for Obamacare for the exact same reason: It would be a disaster for Republicans. The fix to the bill would be simple but Republicans won’t be able to do it because their base would, again, flay them alive. Millions of people would lose their insurance and everyone would blame Republicans for not passing the simple fix. Rock, meet hard place. It would be an electoral disaster going into the 2016 election cycle. There is no chance of the conservatives on the Court handing such a potent weapon to Democrats.

Usually, we can rely on the conservative wing of the Supreme Court to against the best interests of the American public but in these two instances, they really don’t have a choice but to do what’s best for the country. Oh, how that must sting their egos.

James Dobson: Gay Marriage Will Lead To Civil War


Probably not, Mr. Dobson…

 Right Wing Watch

James Dobson, the founder of the Religious Right behemoth Focus on the Family, warned in a recent conference call with fellow anti-gay activists that a Supreme Court ruling in favor of marriage equality could lead to a full-blown civil war.

After Janet Porter, the creator of a new “documentary” about how the gay rights movement will outlaw Christianity, discussed her “restraining order” campaign to convince Congress to strip the Supreme Court of its authority to rule on marriage cases, Dobson said that his fellow activists “need to be realistic about what we’re up against here.”

He said that the gay rights issue has reached an unprecedented “level of intensity” and put the country on the brink of conflict: “Talk about a Civil War, we could have another one over this.”

Dobson also claimed that marriage equality will lead to the collapse of the nation: “The country can be no stronger than its families. I really believe if what the Supreme Court is about to do is carried through with, and it looks like it will be, then we’re going to see a general collapse in the next decade or two. I just am convinced of that. So we need to do everything we can to try to hold it back and to preserve the institution of marriage.”

He added that a “discouraged” congressman — whom he later identified as Kansas Republican Tim Huelskamp — told him that his colleagues in Congress are “scared to death” about coming out against marriage equality. “We don’t have support really anywhere in government,” Dobson lamented.

“I agree with [Home School Legal Defense Association founder] Michael Farris that the only thing we can do is to have a state constitutional convention to re-examine the Constitution,” Dobson said. “I wish I could say I believe pouring a lot of opposition, which may not even be there now, onto the Supreme Court is going to make a big difference.”

Other activists appearing on the conference call included Mat Staver of Liberty Counsel, Rick Scarborough of Vision America and Peter LaBarbera of Americans For Truth About Homosexuality.