One of The New Yorker’s best writers has an excellent piece up about Justice Alito

There are some current events articles these days for which it is my first instinct to avoid. They usually entail unpleasant topics I already know to be true, so why ruin my morning coffee by delving into ever more gory details about, say, the fact that there is a growing rabidly anti-democratic white nationalist movement aiming to overthrow American democracy from inside our law enforcement agencies and the military?

The same thing goes for any articles about how — and let’s put this plainly — batshit crazy Supreme Court Justice Samuel Alito is. This is becoming more clear with the passage of time because Alito has in common a particular trait with extremist religious folk everywhere: the more power they accrue and the more they get their way, the more angry and resentful they become toward people who do not believe as they do.

So I was ready to pass over an article about Alito in the current issue of The New Yorker — that is, until I realized it was written by Margaret Talbot, a first among equals when it comes to the best writers at that magazine. If Talbot wrote it, you know you’re going to learn important things, crucial details, you did not know before.

In one section of her piece, Talbot is recounting an online speech Alito gave to members of the arch-conservative Federalist Society, the organization credited with the right-wing takeover of the Court:

In 2020, Alito gave an online speech for the Federalist Society that was unusual, and perhaps unprecedented, for a modern Justice. He bluntly aired his views on specific issues before the Court, including a Second Amendment case that he cited in an opinion this past term. He also expressed concern about the scope of public-health measures aimed at curbing the spread of covid-19, declaring, “The pandemic has resulted in previously unimaginable restrictions on individual liberty.” Alito excoriated the governor of Nevada’s decision to cap church services at fifty people during the pandemic while allowing casinos, restaurants, and movie theatres to stay open at fifty-per-cent capacity. The message, he said, was “forget about worship and head for the slot machines, or maybe a Cirque du Soleil show.” (The Court, which then still had Ginsburg on it, had upheld the Nevada regulations.)

In certain moments, he sounded like a conservative talk-radio host deploying a set of tried-and-true culture-war tropes. Today, Alito lamented, “you can see shows on your TV screen in which the dialogue appears at times to consist almost entirely” of the seven words that the comedian George Carlin had, in 1972, listed as the ones you couldn’t say on TV. At the same time, there were “seventy times seven” things that you couldn’t say on college campuses or at many workplaces. “You can’t say that marriage is a union between one man and one woman,” Alito bemoaned. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”As Alito saw it, “In certain quarters, religious liberty is fast becoming a disfavored right,” while “the ultimate second-tier constitutional right, in the minds of some, is the Second Amendment right to keep and bear arms.”

Ira (Chip) Lupu, an emeritus professor at George Washington University Law School with an expertise in religion, believes that Alito has crudely applied “an entirely appropriate concern about persecution of vulnerable minorities, including religious minorities, around the world” to the way “conservative religious people, mainly Christians, are in conflict over matters like L.G.B.T.Q. rights and the status of women and reproductive freedom in this country.” Christian Americans, Lupu argued, “don’t get persecuted—they get disagreed with.” He continued, “Yes, sometimes they are under certain obligations as citizens. They might face non-discrimination laws. But nobody ever says, for example, that you have to give the sacrament of marriage to same-sex couples. Nobody says you lose your tax exemption if you don’t ordain openly gay priests or rabbis. That would be persecution.”

In Rome, Alito claimed that “you had better behave yourself like a good secular citizen” just to go into public nowadays. Lupu told me, “Nobody says you can’t wear religious garb or a T-shirt with New Testament quotations when you go to the mall. Some people like it and some people don’t, but nobody’s preventing you from doing it.”

Alito has warned that, as Americans become more secular, the U.S. may become less attuned to the constitutional rights of religious citizens. But when he makes this argument a curious elision sometimes occurs, and he seems to be saying that the growing percentage of secular people is in itself a form of religious persecution. In Rome, Alito said, “Think of the increasing number of young Americans whose response, when asked to name their religion, is to say ‘None.’ Think of those who proclaim that religion is bad. What can we say to such people to convince them that religious liberty is worth protecting?” Who is the “we” here? Supreme Court Justices? Conservative Christians? The devout?

In Rome, he told an anecdote about a little boy he’d once spotted at a museum in Berlin who, while gazing at a “rustic wooden cross,” turned to the woman he was with — “presumably, his mother”—and asked who the man on it was. Alito called this “a harbinger of what may lie ahead for our culture.” Even as an anecdote, this doesn’t do quite the work that Alito seems to think it does. Maybe the boy was Muslim or Jewish. Maybe his mother explained, then or later, who Jesus was. Lupu told me, “The other side of the story is, Here this kid is in a museum displaying crucifixes and probably other religious art. Maybe his mother answers respectfully — “We’re not Christians, but this is what many people believe.’ That’s not a bad way for people to get educated about Christianity.”

When delivering speeches, Alito doesn’t raise his voice, and he sometimes adopts a singsong intonation, as if explaining, with weary patience, what ought to be an unassailable truth. But it’s hard not to see anger beneath it all. To Lustberg, it’s striking that at the very moment Alito is “winning” on the Court he seems deeply unsatisfied: “It’s like he wants to both set forth his position and have everybody embrace it.”

I’ve been working since the 1980s on what were then simply known as gay rights issues. Those of us who’ve been part of that movement have known for a very long time that extremist Christians (indeed, all extremist religions) are not happy merely being able to worship and proselytize and build schools and colleges as they please. They will never be satisfied with the knowledge that you cannot go more than a few blocks in any city or town — often less distance than even that — without coming across a house of worship. They are not happy with the fact that they enjoy an overwhelming Christian majority in local, state and federal electoral office holders and political appointees. They are not satisfied that the Christmas season now lasts from August through December. (I love Christmas, BTW.)

They want adherence to their beliefs by the unbelieving and, if they cannot get that, they will equate legislative and judicial non-compliance toward their beliefs with persecuting the believers.

This menace is new to a lot of Americans, now that SCOTUS has the private behaviors of a majority of Americans in its sights, but I’ve seen it my entire adult life.

Back in the 1980s there were respectable Christian and Jewish politicians, Democrats and Republicans alike, who were using their religious beliefs to suggest that the answer to the thousands of gay men dying wretched deaths from AIDS was to ship them all off to an island somewhere. And not just the sick ones. And not just the men.

So, Talbot’s article doesn’t tell me much I don’t already know about how the extremist religious mind works. But it does fill-in some important details about Alito I did not know before. And perhaps it will be a cause for appropriate alarm among some important people of power who someday might be in a position to do something about it.

Read the rest here.

Justice Samuel Alito, looking every bit as pinched and angry as he is.

Another explanation as to why that SCOTUS decision about EPA was so radical

I have a pretty good idea what happened and why when the Supreme Court ruled against the EPA in that West Virginia case.

But even when I think I understand something I will often find something that clarifies or expands on my understanding of a given subject.

This article from The Atlantic by Georgetown University law professor Liza Heinzerling gives me some additional understanding about why that decision was so important — and what it portends for tackling major problems facing our country:

Like many governmental agencies, the Environmental Protection Agency has an elaborate process for developing important rules. As I saw during the Obama administration, when I headed the EPA office that oversees this process, getting a major rule over the finish line can take years. Almost every step of the way offers obstacles to addressing any serious environmental problem.

This work just got much harder, if not altogether impossible. In West Virginia v. EPA, the Supreme Court held that Congress may not authorize an administrative agency like the EPA to address an issue of great economic and political significance—in the Court’s parlance, a “major question”—unless Congress speaks extremely precisely in doing so. Broad statutory language, written with the aim of empowering an agency to take on new problems in new ways, will no longer suffice.

The Court’s major-questions doctrine will make effective governance of this country even harder than it has long been. Somewhat ironically, the first victim is Congress itself. Congress has long addressed important problems by empowering agencies to regulate based on newly developed scientific and technical information. That is what Congress did in the Clean Air Act and in the public-health and workplace-safety statutes the Court narrowed in the COVID cases. All laws with a similar structure, passed in at least implicit reliance on a different interpretive framework from the one the Court has embraced, are now vulnerable to severe judicial cropping. So while the Court is purporting to hand Congress the baton, in reality it’s creating a major hurdle that will stand in the way of Congress’s work.

You can read the rest of the article here.

As usual, Pete Buttigieg holds his own against a Fox News host who constantly tries to interrupt him

I’m a huge fan of Buttigieg, who is one of the most lucid, unflappable political explainers of our times.

Today he was going against a Fox News host who was trying to corner him on whether Supreme Court Justice Brett Kavanaugh should have been protested at Morton’s Steak House:

Buttigieg acknowledged that public officials “should always be free from violence.”

“You’re never going to be free from criticism or peaceful protests, people exercising their First Amendment rights,” the Transporation secretary pointed out.

Buttigieg talked over Emmanuel as he tried to interrupt.

“That’s what happened in this case,” he explained. “Remember, the justice never even came into contact with these protesters, reportedly didn’t see or hear them. And these protesters are upset because a right, an important right that the majority of Americans support was taken away.”

Emmanuel tried to interrupt again but the secretary ignored him.

“Not only the right to choose by the way,” Buttigieg continued, “but this justice was part of the process of stripping away the right to privacy. Since I’ve been alive, settled case law in the United States has been that the Constitution protected the right to privacy and that has now been thrown out the window by justices, including Justice Kavanaugh, who as I recall, swore up and down in front of God and everyone including the United States Congress that they were going to leave settled case law alone. So yes, people are upset. They’re going to exercise their First Amendment rights.”

Buttigieg even managed to get a dig in about Trump trying to overthrow the government, a real no-no on Fox News, as you can tell from the way the show host tried again to cut him off before he could say any more about Trump.

Watch the entire exchange below.

How Congress could nullify that dangerous case the Supreme Court accepted for next year

Every day I read something else about the horror that the U.S. Supreme Court could visit upon elections if it decides in an upcoming case from North Carolina in the way everyone thinks the 6-to-3 conservative SCOTUS will decide.

However, one Slate writer says there is a way forward that would essentially cut SCOTUS off at the pass:

In a one-line order last week, the Supreme Court planted a ticking time bomb that now threatens American democracy. The court agreed to hear a case in which North Carolina legislative leaders argue that state legislatures should be free to regulate congressional elections without any constraints from other state actors. If adopted, this position would revive the Republican gerrymander of North Carolina’s congressional districts, which a state court struck down on state constitutional grounds. In other cases, this position would mean that state legislatures could subvert congressional elections without pushback from governors, state courts, or even state electorates.

Fortunately, Congress doesn’t have to sit back and wait for the court’s next potential blow against democracy. Under the same constitutional provision invoked by North Carolina’s politicians, Congress can indisputably nullify their claim of absolute electoral power—and all others like it. That provision is the elections clause of Article I. North Carolina’s politicians fixate on the first half of the clause, which says that “the Legislature” of each state shall regulate the “Times, Places and Manner” of congressional elections. But the clause’s second half authorizes Congress to override any state policies about congressional elections with which it disagrees. “Congress may at any time … make or alter such Regulations.”

To nip the North Carolina case in the bud, then, all Congress has to do is pass a short statute ratifying all state regulations of congressional elections that are compliant with state constitutions. State constitutions commonly give regulatory roles to many nonlegislative actors: governors who can veto bills, state courts who can review laws’ constitutionality, bureaucrats who can set certain policies, even voters who can launch initiatives. Under the proposed statute, all these actors’ efforts would be immunized against North Carolina–style challenges. That’s because gubernatorial vetoes, state court decisions, state agency rules, and voter initiatives would all now have the imprimatur of federal law.

I’m always amazed at the number of people who think that SCOTUS has the final say through the decisions it hand down. But Congress has very clearly been, in the Constitution, set up as being able to put the brakes on an out-of-control Supreme Court.

Yet another reason — how many do we need, at this point? — to do everything we can to make sure that 1) Republicans do not take over the House or the Senate and, 2) we get two more Democratic U.S. senators elected to the Senate to nullify those idiots Manchin and Sinema.

Power is shifting back to Congress and the states; progressives need to deal with that reality

If Washington Post columnist George Will is good for anything, he is a master at distilling conservative thought as it has been cooked up in the halls of the Federalist Society where Trump-appointed Supreme Court justices no doubt received much of what passes as their legal doctrines.

And, as Will notes in his June 30 column, the overturning of Roe v. Wade might have gotten the most media play during the just-ended SCOTUS session, but many mainstream conservatives will say the “most momentous decision” came on the term’s last day when the court severely restricted the EPA’s ability to regulate carbon emissions.

Will described the decision this way:

Roberts, joined by Justices Alito, Barrett, Gorsuch, Kavanaugh and Thomas, invokes the “major questions” doctrine. It holds that when an executive agency claims a power to order changes of vast economic and political significance — e.g., the EPA’s proposed multi-billion-dollar restructuring (mandatory capital investments, higher energy prices) of a huge sector of the economy — courts should be skeptical of such claims unless legislation clearly and explicitly authorizes it. Otherwise, the agency is illegitimately lunging beyond its law enforcement function.

He goes on to defend it:

Hysteria is constant today, so hyperbole is, too — as when on June 20 the New York Times’s lead article — top of Page 1, columns five and six — warned readers to be frightened that the court might do what it in fact did Thursday. The Times said a ruling against the EPA could severely limit “the federal government’s authority” to reduce carbon dioxide from power plants. But the court’s Thursday decision did not diminish the government’s authority; it said the primary authority must be explicitly exercised by Congress, which (although progressivism often forgets this) is part of the government. The Times also warned that the EPA case could eviscerate the “federal ability” to address climate change. No, the court has required only that more responsibility be taken by Congress, which is (although progressives often regret this) a federal institution.

In 1887, Professor Woodrow Wilson of Bryn Mawr College wrote that the complexities of modern life demand government by expert administrators with “large powers and unhampered discretion.” On Thursday, the court served notice to Congress and executive agencies that modern complexities are not a sufficient reason for abandoning the Constitution’s separation of powers, which still governs those who govern us.

Whether you agree or disagree with Will’s analysis, this much is certain: Progressives have long relied on judges and federal agencies with an expansive view of the powers they have used to enforce and expand civil rights, environmental progress, workplace protections and so on. That era is coming to a close for the foreseeable future.

We now have to look to the voting booth as the chief source of progressive power. (FWIW, Texas ranks 50th in voter turnout.) That is how conservatives have seized so much power — with the assistance of gerrymandering, etc. — and that is how progressives have to start winning that power back.

SCOTUS decisions such as the one granting same-sex marriage equality are, for the time being, a thing of the past.

SCOTUS to decide if a state’s voters have a say in whether animal meat sold in that state (but produced out-of-state) is sourced humanely

California’s voter-approved Prop 12 is in jeopardy:

When the Supreme Court sits in October, having taken a break after its current bout of country-shaking decisions, it will decide whether Californians have the democratic right to decide how the animals they eat are treated. In 2018, the Golden State’s voters overwhelmingly supported Proposition 12, a ballot initiative that requires that many animal-derived products, like pork and eggs, sold in California come from animals raised on farms that give them more space to move. Specifically, it required giving pregnant pigs 24 square feet of space, thereby freeing them from gestation stalls in which they cannot turn around or even lie down comfortably. In the wake of the decision, the meat industry in California turned to scaremongering about price increases and bacon shortages, and challenged Prop 12 in court. It lost.

But now the highest court has agreed to hear the case, and a who’s who of American business has lined up behind the pig industry. Amicus briefs for the case have been filed by U.S. and Canadian meat industry groups, manufacturing and pharmaceutical associations, and free market evangelists like the Cato Institute and the U.S. Chamber of Commerce. The crux of all these groups’ arguments is that Proposition 12’s animal welfare standards will impose an unfair economic burden on pig producers in other states that sell to California. Unexpectedly, the latest group to throw its weight behind the hog barons is the Biden administration’s Department of Justice. But while this case, National Pork Producers Council & American Farm Bureau Federation v. Ross, is ostensibly about interstate commerce, it also raises a deeper question: whether values democratically expressed by a state’s voters can serve as legal basis for regulating harmful industries’ effects within that state.

With the current Supreme Court the issue will likely come down to corporate rights over people rights. SCOTUS loves corporate rights.

SCOTUS: Doctors who prescribe in good faith cannot so easily be convicted of trafficking

When a majority SCOTUS opinion is written by Justice Stephen Breyer, and joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh, you know its an odd decision:

The Supreme Court today unanimously sided with two physicians who were convicted of drug trafficking based on opioid prescriptions that federal prosecutors portrayed as medically inappropriate. Six justices said the government is required to prove that a doctor “knowingly or intentionally” exceeded the authorization for medical use of controlled substances. Three justices disagreed with the majority’s legal analysis but concluded that a doctor cannot be convicted of drug trafficking if he acted in “good faith.”

The decision in Ruan v. United States sends both cases back to the lower courts so they can assess the defendants’ arguments that the instructions received by the juries that convicted them misstated the law seriously enough that they are entitled to new trials. But whether or not they prevail on those claims, the ruling represents an important limit on prosecutions that have long had a chilling effect on pain treatment. Physicians who prescribe opioids based on an honest belief that they are practicing good medicine now have less reason to fear that they will nevertheless face federal charges that could send them to prison for decades.

Kate Nicholson, executive director of the National Pain Advocacy Center, is “thrilled with the ruling,” which she says “entirely tracked the argument we made in our amicus curiae brief.” Under Ruan, she notes in an email, “doctors authorized to prescribe controlled substances can only be convicted for violating the Controlled Substances Act when they intend or know that they are prescribing in an unauthorized manner.” That requirement, she says, is especially important for “doctors treating patients in pain, who might otherwise be deterred from meeting the needs of their patients by the fear that disagreement with their medical judgment would subject them to serious criminal liability.”

The fact is that some very wise and learned doctors were becoming skittish about prescribing legitimate pain killers because they were afraid of the government coming after them if patients end up abusing them.

I’m willing to tolerate a few pill mills in exchange for cancer patients in unimaginable (for most of us) pain getting the meds they need to make their often short lives bearable.

SCOTUS still has to rule on the case that could hobble the government’s efforts to regulate labor laws, Wall Street wrongdoing and the fossil fuel industries

Abortion, school prayer and guns have rightfully gotten much of the press about the Supreme Court this session. But a final high-profile case from this term could end up being the worst one of all:

Donald Cohen over the ITPI (In The Public Interest) an organization that fights corporate and government wrongdoing at all levels, has this to say:

[T}here’s another case with massive implications for our freedom.

No, I’m not talking about Carson v. Makin, which the court just struck down on Tuesday, allowing for more expansion of voucher policies that provide public money for private and religious education. (That’s a huge deal too.)

I’m talking about West Virginia v. Environmental Protection Agency—and it’s really, really scary.

The New York Times writes that the case is a “product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders, several with ties to the oil and coal industries, to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming.”

If the court does what it’s expected to do, the ruling will severely limit the federal government’s authority to reduce carbon dioxide from power plants.

But that’s not the half of it.

Remember when Trump’s right-hand man Steve Bannon said that the administration’s goal was the “deconstruction of the administrative state?”

As the Times documents, conservatives are ultimately after something much broader and deeper than just protecting the oil and coal industry’s right to pollute the air. They want to “overturn the legal doctrine by which Congress has delegated authority to federal agencies to regulate the environment, health care, workplace safety, telecommunications, the financial sector and more.”

The issues covered by this case will have far-reaching effects for every American. It’s a Federalist Society wet dream. And it has been a long-term goal of the oil, gas and coal industries. They might be about to get what they want as soon as this week or next.

You can read the rest here.

From the ITPI About page.

The Supreme Court is not above being reigned-in by the legislative branch

The Supreme Court increasingly acts as if it is uniquely above the other two branches of government, untouchable in its power to reshape American society to its (currently) right-wing whims.

But, as WaPo columnist Jamelle Bouie points out, there are ways for Congress to clip the Court’s wings:

The Supreme Court does not exist above the constitutional system.

It can shape the constitutional order, it can say what the Constitution means, but it cannot shield itself from the power of the other branches. The Supreme Court can be checked and the Supreme Court can be balanced.

It is tempting, in the immediate wake of the court’s ruling in Dobbs v. Jackson Women’s Health, to say that there’s nothing to be done about the reactionary majority on the court. But that’s just not true. The Constitution provides a number of paths by which Congress can restrain and discipline a rogue court.

It can impeach and remove justices. It can increase or decrease the size of the court itself (at its inception, the Supreme Court had only six members). It can strip the court of its jurisdiction over certain issues or it can weaken its power of judicial review by requiring a supermajority of justices to sign off on any decision that overturns a law. Congress can also rebuke the court with legislation that simply cancels the decision in question.

Of course, none of this can happen if the House, Senate or White House become controlled by the same reactionary GOP forces controlling the high court.

In many ways, the Court should always be uppermost in the minds of progressive voters when deciding which candidates to support (and whether to vote at all).

Yes, gas is expensive and inflation is high. But sending Republicans to Congress is exceedingly short-sighted and not a very good way of influencing those issues (in a consumer-friendly way) anyway.

The Supreme Court building in D.C.