Archives for category: Justice

Having submitted his resignation (or been fired), Bill Barr must now be hoping to rebuild his reputation as a responsible lawyer. At his last press conference as Attorney General, he rejected several of Trump’s vengeful ideas. He sees no reason to seize voting machines. He agreed with Mike Pompeo that the cyberbreach appeared to be attributable to Russia. He sees no reason for a special counsel to investigate election fraud or Hunter Biden.

WASHINGTON (AP) — Outgoing Attorney General William Barr said he saw “no reason” to appoint a special counsel on potential election fraud or the tax investigation into the son of President-elect Joe Biden.

Barr said Monday in his final press conference that the investigation into Hunter Biden’s financial dealings was “being handled responsibly and professionally.”

“I have not seen a reason to appoint a special counsel and I have no plan to do so before I leave,” he said.

Barr also told The Associated Press in a previous interview that he had seen no evidence of widespread voting fraud, despite President Donald Trump’s claims to the contrary. Trump has continued to push baseless claims even after the Electoral College formalized Biden’s victory.

With a few of Trump’s closest advisors trying to restrain his authoritarian and mad impulses, we have to count down the days until he is out of the White House. There are 30 days until January 20. Bill Barr is leaving December 23. Who knew we would ever rely on him as the voice of sanity in the Mad House? That leaves 27 days for Trump to do something to satisfy his base.

ProPublica has been collecting evidence of Trump’s “midnight regulations,” the last-minute rule changes he and his cruel administration want to impose before they leave office.

https://projects.propublica.org/trump-midnight-regulations

Most egregious perhaps is the rule change that brings back execution of prisoners by firing squad or execution. This from an administration that claims to be pro-life.

There have been no federal executions of prisoners for 17 years. Attorney General Bill Barr revived the death penalty in 2019. Eight Federal prisoners have been killed this year. Five more are scheduled to be put to death before Biden takes office.

Biden opposes the death penalty and is sure to reverse this cruel revival of barbaric practices.

The Supreme Court has taken a dangerous rightwing turn since the addition of Trump’s three religious zealot. Poor Chief Justice John Roberts has lost control. He is no longer the deciding vote. In the latest decision, he joined with the Court’s three liberals in a vain effort to say that public health requires all of us to accept limits and restrictions, even houses of worship. Several people tweeted to tell me that their churches encouraged masks and social distancing. But many others do not. See the photograph in Mike Klonsky’s post of a Brooklyn synagogue where thousands of congregants were packed together, maskless.

Thousands of unmasked Hasidic sect members squeeze inside the Yetev Lev temple in Brooklyn for the wedding of a chief rabbi’s grandson. Similar weddings have been happening in Brooklyn for months in violation of city ordinances — with precautions such as covering windows with paper and guards at the doors in case an inspector shows up to keep them from being detected.

The Supreme Court’s 5-4 midnight ruling, which prevents New York city and state officials from imposing limits on the Roman Catholic Diocese or Brooklyn’s Hasidic sect during the pandemic, had little to do with the broad issue of religious freedom. Rather it was a signal to Trump’s MAGA death cult and his evangelical base that the extreme right-wing majority, led by DT’s newly-appointed religious cultist, Amy Coney Barrett, was on the job and will be for decades to come. 

The Court already ruled that a baker in Colorado did not have to bake a wedding cake for a gay couple. What will the Court rule when a shopkeeper refuses to serve women or blacks or Jews because of his religious beliefs? This Court is certain to say that religious beliefs “trump” civil rights law.

Jesse Jackson wrote in the Chicago Sun-Times that Black Americans will not fall for Trump’s absurd claims about the great things he claims to have done for them.

https://chicago.suntimes.com/columnists/2020/10/26/21535175/black-americans-vote-trump-civil-rights-jesse-jackson

He wrote:

If a lie is repeated often enough, the truth may never catch up. Donald Trump understands this better than anyone, as he showers Americans with lies — often the same ones repeated over and over — knowing that more voters will hear him than the fact-checkers. 

One of his favorite howlers is his oft-repeated claim that “I’ve done more for African Americans than anybody, except for the possible exception of Abraham Lincoln.” 

No one should fall for the con.

For example, Trump doesn’t come close to Harry Truman who desegregated the U.S. military, an act of simple justice that took immense courage. He’s done nothing as important as Dwight Eisenhower who dispatched troops to Little Rock, Arkansas, to overcome resistance to school integration. He can’t hold a candle to Lyndon Johnson, who, working with Dr. Martin Luther King and the civil rights movement, passed the Civil Rights Bill ending segregation in public facilities, the Voting Rights Act enforcing the right to vote, and the War on Poverty that reduced poverty to levels still not matched.

But comparing Trump to presidents who actually made things better is to fall into his trap, for Trump hasn’t done things for African Americans, he has done things to them. 

He’s embraced the Republican strategy of race-bait politics, only he’s replaced their dog whistles with a bullhorn. He celebrated the neo-Nazis and other extremists marching against civil rights protesters in Charlottesville. He’s scorned African countries and Haiti as “s…-holes,” suggesting the only immigrants he wanted were whites from countries like Norway. 

He sowed racial fears, painting the largely nonviolent Black Lives Matter demonstrators as “thugs,” and the demonstrations as “riots.” He’s tried to rouse support from suburbanites by charging that Biden’s support for affordable housing would “destroy your neighborhood and your American Dream.” He’s labeled cities with large minority populations like New York City as “anarchist jurisdictions” that should be stripped of federal support…

Trump’s Small Business Administration stiffed African Americans in dispensing loans through the Pay Protection Plan. More than 9 of 10 Black-owned small businesses that applied for loans were denied. That led directly to over 40% of Black-owned businesses shutting down in the pandemic. 

Trump measures the economy’s success not by the health of the people, but by the health of the stock market, but while 61% of whites participate in the stock market (although for most the holdings are meager), only one-third of blacks own stocks. Nearly one-half of Black women report that they are unable to pay for necessities like food and housing, even though most work. Over half have less than $200 in savings. Trump doesn’t help. He did nothing to raise the minimum wage and has been actively hostile to unions that help workers bargain a fair wage.

Essential workers are disproportionately African American. Blacks are disproportionately in low-wage jobs, often without employer-based health care. The pandemic has killed Black people at double the rate of Whites. African Americans have suffered the most from Trump’s mismanagement. Blacks have been more likely to be denied health care, and less likely to have paid sick days. 

And Trump has basically been AWOL as the Republican Senate blocked action on a relief plan as unemployment insurance was running out, and states and cities were facing massive cuts in services and jobs — disproportionately held by people of color — in the wake of the pandemic-caused fiscal crisis.

Trump touts the modest criminal justice reforms that he signed off on that will help reduce mass incarceration a bit, but he has actively undermined equal justice under the law. He encouraged police to rough up those that they arrest. He defended vigilantes shooting at those protesting the murder of George Floyd. He terminated the Obama Justice Department’s police department investigations and consent decrees that were reforming police practices. He boasts of arming police forces with military weaponry. He even terminated racial-sensitivity training in the federal government, mostly as a grandstand appeal to his base of angry White men. He’s appointed the most federal Appeals Court judges since Jimmy Carter; not one of them is Black. 

Trump not only has done nothing to revive the Voting Right Act, gutted by the right-wing gang of five on the Supreme Court, he and his party have actively worked to suppress Black voting — passing ID requirements, shutting down polling places, purging voter lists, making registration harder, limiting early voting, undermining vote by mail, gerrymandering districts and more — all designed with laser focus to reduce the Black vote.

In short, Trump has left African Americans in the deepest hole with the shortest rope. Not surprisingly, most won’t fall for Trump’s big con. African Americans — and particularly African-American women — will vote overwhelmingly for Joe Biden. The base for Trump and Republicans will continue to be those not repelled by his racially divisive rhetoric and policies. 

Periodically, however, it is useful to remind people that night is not day, that hate is not love. When Lincoln freed the slaves, they joined the Union armies in large numbers and helped save the Republic. Trump can’t be mentioned in the same breath as Lincoln, and African Americans aren’t about to save him.

Sheldon Whitehouse, Senator from Rhode Island, gave a masterful presentation on the power of dark money at the confirmation hearings for Judge Amy Coney Barrett. Please take 30 minutes and watch it. If we don’t put a stop to the power of dark money, we will lose our democracy.

Senator Whitehouse names names. He details the “Scheme,” the money trail, the big donors (where they can be identified) who are buying our democracy and choosing Supreme Court Justices.

Their three big legal goals right now: to overturn Roe v. Wade; to overturn the gay marriage decision; to overturn the Affordable Care Act.

The Republicans are rushing through Judge Barrett’s confirmation so that she can be a member of the Supreme Court when Obamacare (the Affordable Care Act) is argued on November 10.

Joe Scarborough, the host of “Morning Joe” and a former Republican Congressman, wrote this provocative article for The Washington Post, where he is a columnist.

Deep suspicion surrounded the new president and his plans for the Supreme Court. He had been attacking the high court’s rulings for years and even groused publicly nine months after being sworn in that “the country generally has outgrown our present judicial system.” His future secretary of war, Edwin Stanton, bitterly complained to his predecessor that the new president was certain to “affect the future doctrines of the Court.” 

Abraham Lincoln confirmed his opponents’ worst suspicions when he moved against the Supreme Court by signing the Judiciary Act of 1862, adding a 10th justice to the court. Following his assassination, Republicans in Congress reduced that number to seven in an effort to thwart Lincoln’s Democratic successor. Republicans then added two justices after winning back the White House in 1869.

Thanks in part to these maneuvers, the party of Lincoln would control the highest court in the land for the remainder of the 19th century and for the first 40 years of the next century. By 1937, Franklin D. Roosevelt had had enough, but his effort to expand the court was rebuffed by members of his own party. Still, a president working with Congress to change the Supreme Court’s size has a rich historical tradition that is both constitutionally protected and backed by 231 years of precedent. If Joe Biden were to propose such a change, constitutional originalists would surely be his most aggressive supporters.

As Amy Coney Barrett said in Senate testimony this week, the Constitution has “the meaning that it had at the time people ratified it.” Even before every state ratified America’s founding charter, George Washington signed a bill that placed just six justices on the Supreme Court. The second president, John Adams, reduced that number to five. Thomas Jefferson increased that number to seven. And the man who inspired the term “Jacksonian Democracy” added two more justices in 1837.

Given such a powerful legacy, originalists, Republican politicians and right-wing bloggers would never dare suggest that adjusting the Supreme Court’s size was anything other than constitutional and consistent with the republic’s oldest traditions. To do so would condemn as un-American the Father of our Country, the author of the Declaration of Independence and the first president to live in the White House.

How would Barrett respond to such slander? These men were, after all, present at the creation of our constitutional republic. The founding document “doesn’t change over time,” Barrett exclaimed, “and it isn’t up to me to update or infuse my own policy views into it.” By that standard and the actions of the Founding Fathers, there is no good-faith constitutional argument against the future addition of Supreme Court justices.

Those in the party of Trump will thus be forced to present themselves as the protectors of America’s political norms in opposing such an act. This approach would be laughable. After all, Republicans continue supporting a president who has said Article II gives him “the right to do whatever I want as president”; questioned the legitimacy of federal judges; used the Stalinist smear “enemy of the people” against the free press; refused to condemn white supremacists; told “Second Amendment people” they could stop Hillary Clinton from appointing judges; sided with an ex-KGB agent over America’s intelligence community; attacked military leaders as “losers”; undermined America’s democratic process by proclaiming it to be “rigged”; and refused to guarantee the peaceful transfer of power. Beyond Trump’s multitude of sins against democracy, Majority Leader Mitch McConnell would then have to account for his own trashing of Senate traditions before positing himself as the protector of political norms.

The American people will never buy it. By their own actions, these radical Republicans have no standing to protest future changes to the court’s makeup. They have made their own bed. Now it is time for them to sleep in it.

Kevin Tobia, an assistant professor of law at Georgetown Law Center, wrote in Salon that Amy Coney Barrett’s “originalist” interpretation of law is incoherent.

Tobia writes:

Many fear that Amy Coney Barrett’s Supreme Court confirmation will erode the established rights of women and LGBTQ+ persons, given Barrett’s private convictions. At last week’s hearings before the Senate Judiciary Committee, Barrett responded clearly: “A judge must apply the law as written, not as the judge wishes it were.” Barrett is an originalist and textualist, who prioritizes “what people understood words to mean at the time that the law was enacted.” In pointing outward to the people, originalism conveys an alluring humility. Originalism is not personal; its conclusions reflect the objective fact of “public meaning.” 

But are originalists right about the facts? I ran experiments to test whether originalism’s tools actually reflect public meaning. The results are surprising and troubling. In a forthcoming article in the Harvard Law Review, I found that the tools originalists rely upon support false conclusions about public meaning — and often conflict with each other. Until originalists like Barrett articulate better methods, Americans have no good reason to believe the theory is succeeding, even on its own terms.

In historical interpretation, originalists rely on tools like dictionary definitions: How was the contested term defined? They also rely on patterns of language usage: What was the most common way to use the term? A “big data” version of this approach called legal corpus linguistics has gained popularity.

I tested whether these tools actually reflect public meaning today, with a simple experiment. Consider a well-known example from legal philosophy: What is the meaning of the term “vehicle”? Three different groups participated in an experiment. The first made judgments about vehicles (e.g., “Is an airplane a vehicle: Yes or no?”). The second made judgments equipped with a dictionary definition of “vehicle” and the third with data from legal corpus linguistics (e.g., data about how the word “vehicle” is most commonly used).

Those groups reached radically different conclusions. For example, about 50% of people today say that a canoe is a vehicle. Yet nearly all participants using a dictionary definition reached that judgment (95%), while nearly all the participants using the corpus linguistics data reached the opposite judgment (only 10% agreed). Similar divergences arose across many different examples, and across groups of ordinary Americans, law school students and United States judges...

A broader problem for originalism concerns the concept of “public meaning” itself. If originalists can identify how the public understood our Constitution in 1787, surely they can identify the “public meaning” of very simple terms today. Justice Brett Kavanaugh, also an originalist, invites us in a recent opinion to consider again the meaning of “vehicle.” Clearly a car is a vehicle, but what about a canoe, an airplane or a baby stroller? Kavanaugh provides straightforward answers: “the word ‘vehicle,’ in its ordinary meaning does not encompass baby strollers.”

Does the American public agree? About 75% of Americans agree that baby strollers are not “vehicles.” But 25% disagree. Other cases are even more difficult. People are divided 70-30 concerning whether airplanes are vehicles, divided 60-40 on bicycles and divided 50-50 on canoes. It’s not obvious what originalists should make of these facts. Is “public meaning” the same as “75% meaning” or “50% meaning”?

What does the Constitution say about computers, the Internet, and data privacy? What does it say about equal rights for African Americans, women, and gay people? What does it say about corporations and their “rights”? What does it say about in vitro fertilization (which Barrett has called “manslaughter”)? These “what ifs” can go on and on and on because the white men who wrote the Constitution lived in a very different world from 2020. They wrote a Constitution for their time and laid out general principles for the future, which subsequent Courts have adjusted to meet the issues of changing times.

It seems like the height of hubris to try to think as if he (certainly not she) could imagine what was in the minds of the Founders.

Of one thing we can be sure: The Founders did not imagine women sitting on the Supreme Court or voting in elections or serving on juries. If they wanted equality between men and women, they would have said so. They didn’t. They would be appalled that Amy Coney Barrett is joining two other women–Justice Sonia Sotomayor and Justice Elena Kagan–on the Supreme Court. A true originalist would immediately recognize that the Founders did not envision women on the Court. And Judge Barrett–if she is true to her philosophy–would decline a seat on the Court.

Jan Resseger writes here about the misfit between an “originalist” interpretation of the Constitution and the field of education, which has evolved very far from its condition in the 1770s. It is likely that an originalist, as Judge Amy Coney Barrett claims to be, would have nothing to say about contemporary issues in education, since there were no public schools, no Catholic schools, no organized system of education at all in the time that the Constitution was written.

Resseger writes:

For a couple of weeks now, since the publication of Derek Black’s history of the constitutional basis for American public education, this blog has been reflecting on the meaning of constitutional principles in our nation’s founding documents and the 50 state constitutions for defining the role and meaning of our nation’s system of public schools.  (See herehere, and here.)

But this week, Judge Amy Coney Barrett, who defines herself as a constitutional originalist, went through hours of Senate confirmation hearings leading to a Senate vote on her confirmation in the next week or two as President Trump’s latest appointment to the U.S. Supreme Court. All week we have been considering what it means for our society today when members of the U.S. Supreme Court define themselves as originalists who are bound to interpret the constitutionality of today’s laws according to the precise wording of the U.S. Constitution of 1787.

The other day when Chicago Mayor Lori Lightfoot, trained in the law and formerly a federal prosecutor, was asked whether she is an originalist, Mayor Lightfood replied: “You ask a gay, black woman if she is an originalist? No, ma’am, I am not. The Constitution didn’t consider me a person… because I’m a woman, because I’m black, because I’m gay.  I am not an originalist. I believe in the Constitution. I believe that it is a document that the founders intended to evolve and what they did was set the framework for how our country was going to be different from any other. But originalists say that, ‘Let’s go back to 1776 and whatever was there in the original language, that’s it.’ That language excluded, now, over 50 percent of the country. So, no I’m not an originalist.”

Like Mayor Lightfoot, many people today worry about originalist legal interpretation.  In Linguistics 101, students learn that language changes and evolves over time as particular words become archaic, fall out of common usage, or evolve to mean something different. Dictionaries are descriptive, not prescriptive. We cannot know precisely what the founders intended, but we can be sure that the words they used in 1787 may connote something much broader or narrower today.

Schoolhouse Burning, Derek Black’s new book is, in essence, the history of how the meaning of the guarantee of public education as a right for every child has changed and become more inclusive in the over two hundred years since our nation’s founding. Some people say that because the Constitution itself does not mention public education, public education is not a fundamental right, but Black disagrees because public education is so carefully planned in the Northwest Ordinance, passed as a sort of companion document in the same year as the Constitution.  As Black traces the history of our understanding of the right to public education, it’s clear that Derek Black is certainly not an originalist.  His book is the story of how our history—the civil war, the development of the constitutional principles of the 50 states, Jim Crow, the Civil Rights Movement—has informed and further defined the meaning of the founding principles: “The foregoing principles—the right to an adequate and equal education, making education the state’s absolute and foremost duty, requiring states to exert the necessary effort (financial or otherwise) to provide quality educational access, placing education above normal politics, and expecting courts to serve as a check—are all in the service of something larger: the original idea that education is the foundation of our constitutional democracy.  Education is the means by which citizens preserve their other rights. Education gives citizens the tools they need to hold their political leaders accountable…  Democracy simply does not work well without educated citizens.” (Schoolhouse Burning, p. 224)  Black reminds us, however: “The founders articulated educational goals not with any certainty that they would spring into reality simply by writing them down, but in the hope that we might one day live into them.” (Schoolhouse Burning, p 71)

Originalist” legal interpretation doesn’t pay much heed to how we have lived into the goals and principles declared all those generations ago. How has the meaning of the constitutional protection of equal education evolved over the history of our country?

Steven Singer tries to understand today’s public schools through the eyes of an “original story,” someone who judges court cases based on the original intent of those who wrote the Constitution.

He writes:

Let’s say you went to a restaurant and ordered a big ol’ meat sandwich only to find nothing but straw between two pieces of bread.

“Waiter!” You say, calling over a server.

“What’s wrong, Sir?”

“There’s no meat in my sandwich.”

“Oh, Sir?” He says smiling, examining your plate. “Here at Scalia’s Bar and Grill we adhere to a strict originalist interpretation of language.”

“What does that have to do with my sandwich?”

“Well, Sir, in Old English ‘meat’ meant any solid food, anything other than drink. As in ‘A Journey to the Western Islands of Scotland’ (1775), Samuel Johnson noted, ‘Our guides told us, that the horses could not travel all day without rest or meat.’”

“But that’s not what I ordered!”

“Oh yes it is, Sir. You ordered the meat sandwich. Enjoy your fresh hay and oats.”

In everyday life, you wouldn’t put up with that kind of nonsense.

But for some reason, far right ideologues think it’s exactly the right way to interpret the U.S. Constitution.

The meanings of words change over time.

But ignoring that fact allows disingenuous crackpots to sweep over centuries of judicial precedent in favor of what they pretend to THINK the words meant at the time the law was written.

It’s not even about what the writers of the law SAID it meant. It’s about what today’s justices decide some hypothetical average Joe of the distant past would take certain words to mean.

The most obvious example, according to Pulitzer Prize winning historian Joseph Ellis,is District of Columbia v. Heller, 554 U.S. 570 (2008), which reversed 200 years of precedent on gun regulations.

Before this ruling, the Second Amendment was interpreted to be referring only to service in the militia. The Militia Act of 1792 required each able-bodied male citizen to obtain a firearm (“a good musket or firelock”) so he can participate in the “well regulated militia” the Amendment describes.

It was about the obligation to serve your country, not the right to own a gun. However, Supreme Court Justice Antonin Scalia – the most infamous proponent of judicial originalism – orchestrated the majority opinion in this case changing all that. By doing a thought experiment about what words might have meant in the 1700s, he papered over two centuries of established law. He was so proud of it that he even described it as “my masterpiece.”

THAT’S judicial originalism.

And now that Scalia fanboy and federal judge for not even three whole years, Amy Coney Barrett, is being rammed through Senate Confirmation Hearings, that preposterous ideology is about to have another proponent on the highest court in the land.

Just imagine if we interpreted everything like people living in the 18th Century!

Please continue reading this excellent post.

I get many requests for donations in my email daily. Some come from the Committee to protect Medicare.

This was written by Dr. Rob Davidson, executive director of the Committee:

For the past three days, I’ve watched Amy Coney Barrett’s confirmation hearings in the Senate. As a doctor, it’s beyond bizarre to see a potential Supreme Court Justice say she’ll make decisions about health care based on Originalism — what she thinks people in the 1700s would have intended.

How different was medicine back then? 

The first vaccine wasn’t developed until 1799 (smallpox). Does Judge Barrett support Medicaid covering the routine immunization of kids against deadly diseases? Would she oppose Donald Trump providing a coronavirus vaccine to us, even though the founders would be confused? 

 1846 saw the first demonstration of anesthesia in the world. Should Medicare pay for anesthesia for hip replacements or heart bypasses, even though the constitution doesn’t mention anesthesia? 

 To Judge Barrett, would my evaluations of Medicare patients with chest pain be unconstitutional since EKG’s and X-rays weren’t used until 1895?  

This list goes on and on. Nearly every aspect of modern medicine was non-existent in the late 18th century. An “originalist” approach to the government funding of any type of health care today might deem all of them unconstitutional. 

This is personal for me. Amy Coney Barrett’s confirmation is all but certain to doom the Affordable Care Act and rip health care from over 20 million Americans, including over 8,000 people in my poor, red, rural Michigan county of 48,000. Is the ACA just the first step? Is Medicare next on the chopping block?

 If Amy Coney Barrett is confirmed, we need to be able to push twice as hard to reach voters in these final weeks to convey just how high the stakes are for health care. Can you chip in $5, $10, or more today to help us reach voters in swing states and save Medicare in these final 19 days? Click here to chip in now.If you’ve saved your payment information with ActBlue Express, your donation will process automatically:

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Thank you so much for your support,

 Dr. Rob Davidson
Executive Director of Committee to Protect Medicare