Is SCOTUS Putting Self-Preservation Ahead of Ruling for the Far Right?

Some recent actions by the U.S. Supreme Court must be disturbing to the ugly underbelly of the Republican Party that thought the appointment of Neil Gorsuch and Brett Kavanaugh to the Court assured them of victory on a number of issues not popular with the larger public.  Some have viewed the Court's actions as a way to preserve its popular respect and legitimacy even if some of the issues will likely come back before it in the future. How the Court rules on the Trump/Pence regime effort to add a citizenship question to the 2020 census - which is designed to cause an under count of non-citizens in mostly blue states - will be telling as to whether self-preservation remains the Courts guiding hallmark.  A column in the Washington Post looks at recent rulings that in the wake of the Virginia redistricting decision against Virginia Republicans have avoided hot button issues and punted them back to the lower courts.  Here are column excerpts:

The justices of the Supreme Court know how to keep out of trouble. That’s the takeaway from the order the court issued on Monday, sending back to the lower court a new case about another baker who wouldn’t bake a wedding cake.

The case, Klein v. Oregon Bureau of Labor and Industries, was a near-exact replica of last year’s Masterpiece Cakeshop case. Like the owner of that Colorado bakery, the husband and wife owners of Sweetcakes by Melissa in Gresham, Ore., claimed that their religion prohibited them from designing and baking a cake to be used in celebrating a same-sex marriage. To do so, the owners explained in their petition to the Supreme Court, would amount to “complicity in sin.” In fact, they said, the very reason they baked wedding cakes was to “celebrate weddings between one man and one woman.”

Like Colorado, Oregon has a public accommodations law that bars business from discriminating on the basis of sexual orientation. Acting on the complaint of a lesbian couple, the official in charge of enforcing that law imposed a $135,000 fine to be paid to the couple as “compensatory damages for emotional, mental and physical suffering.” The Oregon Court of Appeals upheld the order, and the Oregon Supreme Court refused to hear the appeal.

On Monday, instead of adding the case to their docket, the justices vacated the lower-court decision and told the Oregon Court of Appeals to reconsider the case “in light of” last June’s Masterpiece Cakeshop decision. Objectively, that disposition makes little sense. The Supreme Court didn’t actually decide the constitutional issues in Masterpiece Cakeshop. . . . The decision was, in other words, a punt. It has no “light” to shed on the Oregon dispute.

I think that what finally prevailed was an institutional instinct for self-preservation. Why re-enter this battle at this moment? Cases granted this spring will be argued in the fall, to be decided next spring with the political season at its height and the court itself under a bright election-year spotlight. The court already has plenty to do next term, with three cases granted on whether federal law protects gay and transgender people against discrimination on the job. The conflict between private conscience and public duty is age-old. The court has time to resolve it in future cases. In fact, another such case will soon be on the way to the Supreme Court. This month, the Washington State Supreme Court reinstated a ruling against a flower shop owner who, because of her “relationship with Jesus Christ,” told a gay couple, longtime customers, that she could not design a flower arrangement for their wedding. The justices had vacated that ruling and sent the case back to the state court last summer for reconsideration in light of Masterpiece Cakeshop. The state court, deeming Masterpiece Cakeshop irrelevant, reissued its original opinion almost word for word.

What I discern as the Supreme Court’s instinct for self-preservation was also on display last month in an abortion case from Indiana. The state was appealing a ruling that invalidated its law banning abortions for reasons of the race, sex or disability of the fetus, a law enacted in deliberate and flagrant violation of existing abortion precedents. The state’s appeal, Box v. Planned Parenthood of Indiana and Kentucky, went to conference an astonishing 15 times over five months. Ultimately, the court denied the appeal, noting in an unsigned opinion that because the United States Court of Appeals for the Seventh Circuit is the only court to have considered such a law, “we follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”

On a court deeply divided on the subject of abortion, that disposition was unanimous. . . . If I read that message correctly, we can expect the same outcome when the states that are now busy banning abortion appeal to the Supreme Court from the lower-court rulings that will inevitably strike down the new laws. (But to be precise, my prediction holds only until Election Day 2020, when the justices will be free from whatever constraint they now feel about taking a step likely to incite a public backlash against the Republican Party.)

These reflections on the court’s instinct for self-preservation lead me to a final question: What to do about the census case? As the world knows, the deeply contested question of the validity of the Trump administration’s plan to ask about citizenship has become even more fraught with revelations from the computer files of a recently deceased Republican redistricting specialist, Thomas Hofeller. The documents appear to validate the conclusion reached by Federal District Judge Jesse Furman, whose ruling against the Trump administration is before the justices, that the administration’s purported good-government reason for adding the citizenship question was a pretext. The real reason, the documents indicate, was to provide a statistical basis for entrenching Republican power by disregarding noncitizens in the population counts for future redistricting.

Those plaintiffs, represented by the American Civil Liberties Union, have now asked the justices for a “limited remand” that would send the case back to the District Court “to allow exploration of where the truth lies.”

But there is another option, suggested by the plaintiffs in a final footnote to their latest brief: Just dismiss the appeal. The procedure is known as a DIG: “dismissed as improvidently granted.” The justices use it once or twice a term, usually when a case turns out, on further reflection, not to be what they thought it was when they granted it.
For the time being, it’s a reminder that the court knows how to get itself out of a tight spot when it needs to. A DIG requires no explanation. Its effect is to wipe the Supreme Court slate clean, as if the appeal had never even reached the court. A DIG here would leave Judge Furman’s opinion in place and would enable the professionals in the Census Bureau, who strongly objected to adding the citizenship question, free to go about their business counting us — all of us. If I’m right about these recent signals that the court knows how to save itself, now is the time.

The out come of the census case will be telling and clearly signal whether the Court puts its own legitimacy ahead of all else. 

Trump Destroys American Greatness From Within

The Trump/Pence regime's slogan is "make America great again" and many of those who support this toxic regime strut around patting themselves on the back for being "real Americans" and viewing themselves as great patriots.  Meanwhile they and the regime they support - a mix of a would be Hitler and the Three Stooges - are destroying America from within.  In their minds, American greatness equates solely to maintaining and/or restoring white privilege and bullying the less fortunate and non-whites and non-Christians.  Worse yet, blinded by their hatred of others be they blacks, gays, Hispanics and anyone else they deem as "other," they are silently permitting the institutions that made America great (despite its many failings) are being eroded and/or destroyed by the narcissistic occupant of the White House and Republicans only too happy to lick his boots so as to avoid a primary challenge by the ugliest elements in today's GOP. Rather than being patriots, these Trump supporters are subversives and, if support for the U.S. Constitution defines the government, are actively supporting its overthrow.  A column in the New York Times looks at this destruction of America from within.  Here are highlights:

It’s hard to work up much sympathy for the hollowed-out husk of a human being that is Mitch McConnell, or Lindsey Graham for that matter. This country is a harder, colder, more meanspirited place because these senators would rather bootlick a bully than stand for the principles they once espoused.

Surely, they know the price of their vassalage. To serve Donald Trump is to lose all self-respect. You lie for him. You cover for him. You hate for him. John Boehner, the former House speaker, has more honor as a mercenary for marijuana than the elected Republicans shoveling dirt over the grave of the Constitution.

But Americans should care about a more lasting and damaging corrosion — the destabilizing of venerable institutions. It’s one thing to corrupt a politician, the natural osmosis of the species. It’s quite another to debase the foundations of a great democracy.
It started on Day 2, when the hapless liar, newly subsidized by taxpayers, tried to conscript the National Park Service into the fantasy that his crowd was the largest ever.

After the inauguration debacle, Trump moved on to bigger targets — the judiciary, the military, the press, and the professional class of bureaucrats who have made the United States a model for competence and incorruptibility in the Civil Service.

With William Barr, Trump now has an attorney general who doesn’t care how much lasting damage he does to truth, justice and the American way. His mandate as the nation’s top prosecutor is to carry out Trump’s private vendettas.

Next week, the House will vote on whether to hold Barr in contempt for defying the constitutional role of oversight by the legislative branch. Get used to it. Barr is marshaling the enormous legal muscle of the people’s Justice Department as a political hit squad. He’ll use the law, which he ignores when it suits him, to try to imprison public servants who launched an early investigation of Russian attempts to subvert an American election.

No matter that an earlier presidential quisling, failed Kansas gubernatorial candidate Kris Kobach, could find no evidence of another of Trump’s fictions, millions of illegal voters. Barr’s job is to muddy the origins of the Russian investigation enough to frame career public servants as traitors.

Normally, the courts would be bulwarks against the barbarians. And indeed, many judges have stood up to some of Trump’s most outlandish and illegal behavior. But the Trump effect, turning everything he touches to a cheap commodity, is to denigrate the legal arbitrators as “Obama judges” or “Mexican” judges. You’re with him or against him.

This is dangerous stuff. And it gets worse. The most disgusting of the recent corruptions is the attempt to make the military another extension of presidential vanity. The White House wanted to “minimize the visibility” of the U.S.S. John S. McCain while Trump was in Japan. So, a family name synonymous with sacrifice on behalf of country was covered up so that President Bone Spurs would not be offended. Kim Jong-un has to be jealous.

You would think that matters of the soul would be harder for the soulless occupant of the White House to tarnish. After a round of golf last Sunday, a disheveled-looking Trump abruptly showed up at a church in Virginia. The White House said Trump wanted parishioners to pray for victims of a recent mass shooting. Instead, they were asked to pray for Trump. The pastor later said he had been blindsided.

The same cannot be said for the man who oversees the Census Bureau, Commerce Secretary Wilbur Ross. He’s trying to use a mandate of the Constitution, the decennial census, to shore up power in the Electoral College and Congress for the aging white men of Trump’s base.

Any day now, the Supreme Court will rule on Ross’s effort to insert, into the census form that goes out to every household, a citizenship question, something that hasn’t been asked since 1950. It could mean that about 6.5 million people would go uncounted — citizens and noncitizens.

This is a blatant abuse of power and of an otherwise benign government agency, affecting not just the number of representatives or electoral votes each state gets, but also the fate of numerous cities dependent on federal billions in mostly blue America.

We’ve had a census every decade since 1790, after the colonies threw off a king and created a governing document establishing an independent judiciary, a legislative branch that writes the rules of the land, and asserting that no man is above the law. To the present occupant of the White House, it’s only a piece of paper.

Frighteningly, far too many Americans are simply looking the other way or bloviating that they stay out of politics because they don't like politics - just like many "good Germans" did as Hitler rose to power. Citizenship imposes obligations as well as privileges, one of which is to be informed and support constitutional government. Too many Americans prefer watching mind numbing reality TV and sitting on their asses.  Be very afraid. 

U.S. Supreme Court: How to Preserve White Power in Four Easy Steps

With Donald Trump's two appointments to the U,S. Supreme Court - Neil Gorsuch, who believes right wing Christian beliefs trump the civil rights of others, and Brett Kavanaugh -having shifted the balance of the Court to the far right, the Court now stands poised to implement the pro-white, pro-right wing Christian, bigotry of the Trump/GOP base.  Somewhat incredibly, conservative Chief Justice John Roberts is now the swing vote.  As a column in the Washington Post notes, a series of cases have the potential to preserve disproportionate white power thanks in no small part to the peevish Bernie Sanders who refused to vote for Hillary Clinton in 2016. Whatever legal horrors may be forth coming, responsible citizens never forget to remember that these Sanders voters and Jill Stein voters ushered in this potential nightmare (something 20% of Sanders supporters have said they will do again in 2020 if their cult leader is not the Democrat nominee);  Here are column highlights from the Washington Post on today's oral arguments and what may be forthcoming:

The Trump administration and Republican-appointed Supreme Court justices Tuesday held a legal seminar on how to preserve white hegemony in four easy steps.

Step 1: Devise a discriminatory policy.
In this case, Commerce Secretary Wilbur Ross, after consulting with Stephen Bannon, who was then President Trump’s nationalist “alt-right” adviser, resolved to put a citizenship question on the 2020 Census for the first time in 70 years. This would have the well-documented effect of reducing responses to the census by Latinos (from citizens and noncitizens alike), resulting in the undercounting of that population for purposes of congressional apportionment and $900 billion in federal funding.

Step 2: Create a pretext.
In this case, Ross lied to Congress, saying the Justice Department wanted  the citizenship question added to help enforce the Voting Rights Act — a claim three lower courts dismissed as pretextual. In fact, emails showed that Ross (with White House encouragement) was the one who pushed for the citizenship question and quietly dragooned the Justice Department into asking for the question to be added.

Step 3: Muddy the waters.
In this case, Solicitor General Noel Francisco and conservative justices raised doubts about the statistical capabilities of the Census Bureau, claiming it couldn’t accurately “quantify” the damage that would be done by adding a citizenship question because the alternative way to get such information was an “untested statistical model.” Why “untested”? Because the administration denied its experts’ requests to run tests before leaping to a decision.

Step 4: Blame the victim.
Francisco, the top Trump administration lawyer, saved this nastiness for the final minute of the 80-minute argument. If the court disallows the citizenship question, he said, “you are effectively empowering any group in the country to knock off any question on the census if they simply get together and boycott it,” he said, raising the possibility of a boycott by gender-nonbinary people.

For decades, the decennial census sent to each household hasn’t included a citizenship question (it’s instead asked on surveys), and for good reason. Latino residents — legal or illegal — tend to resist such questions out of an (unfounded) fear the government might use the information against them or their relatives. Census Bureau research has projected a drop of at least 5.1 percent from noncitizen households if the question is added, part of an estimated undercount of 6.5 million people. This contradicts the Constitution’s requirement for an “actual enumeration of the people” — not just citizens.

But the conservative justices seemed willing to overlook Ross’s lie and the administration’s dubious justifications.

Francisco began with a deception, saying the citizenship question “has been asked as part of the census in one form or another for nearly 200 years.”

Justice Ruth Bader Ginsburg asked Francisco the same question three times before he acknowledged that the citizenship question had been abandoned in 1960, in part, because it would depress the count of noncitizens. . . . So the administration is free to disregard millions of Latinos in the census — and the courts have no say.

This seemed to be fine with Republican-appointed justices. Justice Samuel Alito said he was satisfied that the accuracy would be 98 percent if the citizenship question were asked (never mind those 6 million or so left out).

Trump’s two appointees developed a newfound fondness for foreign law: Justice Brett Kavanaugh pointed out that the United Nations recommends a citizenship question, and Justice Neil Gorsuch said “virtually every English-speaking country” asks one.

More disturbing were their counterfactual theories claiming some other, unknown variable might cause Latinos not to answer the census. (No such notions appeared in the case record, and census experts had already controlled for other variables.)

The justifications all sounded a bit “contrived,” as Justice Elena Kagan put it, like so much “post-hoc rationalization” of a decision made for another reason.

When you consider that the indisputable effect of adding the citizenship question will be to suppress Latinos’ census participation — and by extension to suppress their political clout — it is difficult not to be cynical about what that reason is.

That's right, a 6.5 million person under count.  To put that in easily understood terms, that is more than 10 times the population of Wyoming or larger than the populations of the Washington, Houston, Miami or Philadelphia metropolitan areas. 

My big complaint with the column - and the mainstream media in general - is that it persists in using the word "conservative" to describe justices and others who are in fact outright racists and bigots.  In the context of the upcoming LGBT employment non-discrimination cases before the Court this term and next term, no doubt "conservative" will be used instead of homophobic and anti-LGBT bigots.  It is far past time that the media begins to call out judges, justices, elected officials and candidates for office for what they truly are and throw away the false and deceptive term "conservative" once and for all.