Right-wing Justices: A Political Debate about Supermajority Elections and the Role of the Shadow Docket in Defending the Right Way to Abort

Conservatives, on the other hand, are celebrating the manifestation of former President Donald Trump’s promise to reshape the judiciary. They believe the right side of the bench is correcting errors of the past, lawfully returning the court’s focus to the text and history of the founding era and interpreting the Constitution in accordance with its original public meaning.

Alito mentioned that many state supreme courts are elected. “And some states allow partisan elections. There has been a lot of discussion about the impact of this decision. Do you think that it makes democracy better to have a political debate about districting from the legislature to the supreme courts?

The misuse of the court’s power is exemplified by the way they abolished the federal right to abortion. First, the right-wing justices used the court’s “shadow docket,” which refers to orders issued in response to emergency applications without open hearings or any public explanation, to allow an obviously unconstitutional anti-abortion law in Texas to stand. They agreed to hear a separate challenge from Mississippi that didn’t ask for them to overturn Wade. The majority opinion by Justice Samuel Alito made a mockery of the work of earlier justices who had weighed the same constitutional questions carefully.

The chopping block revisited: The role of race in determining the United States Voting Rights Act and the future of the judiciary

Chief Justice John Roberts is looking forward to the start of the Supreme Court’s new term on Monday, especially now that the public will be able to attend oral arguments in person and the metal barricades erected to ward off protestors on the plaza have been removed.

Others are wondering what exactly “normal” means anymore, after last term when the court’s reversal of near 50-year-old precedent changed the landscape of women’s reproductive health, it cut back on the power of federal agencies, it cleared the way for new Second Amendment challenges and it inserted itself into the upcoming midterm elections.

Critics say the court is no longer recognizable because of the conservative majority moving the country backwards and eliminating long-held rights.

The abortion case was an example of how the court should have taken into account people who had ordered their lives around Wade, but it wasn’t done that way.

Conservatives are looking forward to a new normal where they will expand the free exercise clause, work toward a so-called color blind society and diminish the administrative state.

The left “had its way for a very, very long time,” John Malcolm of the conservative Heritage Foundation said on Wednesday – dating back to the Warren Court era known for its progressive rulings. He says liberals are reacting to the conservative majority now by questioning the legitimacy of the court itself.

Last month, Roberts described the court’s current docket as a “nice bunch of cases,” but went into little detail. Race is a common thread in some of the most anticipated disputes.

In the North Carolina case a lower court upheld UNC’s use of race calling it “narrowly tailored,” while emphasizing that race is considered simply as a “plus” factor. The lower court also said that UNC did not have a viable race-neutral alternative that would allow it to achieve the educational benefits of diversity.

Triggering the Voting Rights Act is a big deal, with special irony in this context. That’s because this case involves a provision that Congress changed in 1982 to fix what it considered an erroneous Supreme Court interpretation of the statute.

Since 2013, the Supreme Court has twice struck down or neutered major portions of the act. Now, once again, the law is on the chopping block­ — this time on the question of how state legislatures may draw congressional district lines when the state’s voters are racially polarized.

Section 2 may be in jeopardy due to the fact that challengers have relied more heavily on it since the Roberts decision.

“If the state legislature had been very, very generous to minority voters in their redistricting, and the state Supreme Court said … that this violated their own state constitution of North Carolina, would you be making the same argument?” Thomas asked “Are you sure?”

“As uncomfortable as the political reality in Alabama might be – and as strong the temptation to shut our eyes to the tenacity of racial discrimination in voting – the courts must not blink,” attorney Abha Khanna, representing Black voters argued in court papers.

The Second District: Why the State of Colorado Doesn’t Give You Same Sex? A Graphic Designer in Colorado and an Attorney General’s Case Against The Anti-Discrimination Act

A second district that complies with traditional maps that take into account compactness, demographic equality, contiguity, and respect for communities of interest are what Khanna says her plans show.

Nelson stated that ignoring race as one of the many factors to be considered in admissions policies perpetuates racial inequalities and the unfair advantages that have always fallen along racial lines. “It also denies all Americans the ability to leverage our greatest strength as a country – our diversity.”

At an earlier stage of the case, three conservative justices expressed their sympathy for the theory and said the case presented an important and recurring question of constitutional law.

“Both universities award mammoth racial preferences to African Americans and Hispanics,” he said and added that Harvard “uses race against Asian Americans.”

According to the Elections Clause, rules governing the “Times, Places and Manner” of holding elections for senators and representatives need to be prescribed by the Legislature in each state.

The baker declined to make cakes to celebrate same sex marriages. The Supreme Court ruled in favor of the baker, but the ruling was tied specifically to the facts of that particular case and the justices left a decision concerning whether business in general could decline services to same sex couples nationwide for another day.

Now a graphic designer in Colorado named Lorie Smith, who runs a company called 303 Creative, seeks to expand her business to create websites designs for weddings. She doesn’t want to work with same sex couples because she has religious objections to gay marriage. She has written a webpage explaining why she won’t create such websites, but under a Colorado public accommodations law, Smith says she cannot post the statement because the state considers it illegal.

“These customers do not look, love or worship the same way,” Weiser said “but they all expect to participate in the public marketplace as equals.” He said that the law does not target Smith’s message and does not aim to suppress any message that a company might express.

In court papers, the Colorado Attorney General argues that the state’s Anti-Discrimination Act protects Coloradans when buying goods from businesses that are open to the public.

Businesses can decide what services to offer, he said. “The Act requires only that the Company sell whatever product or service it offers to all regardless of its customers protected characteristics.”

The Case for Section 2 of the Voting Rights Act: The Alabama Solicitor General in a Colorblind, Colored America

After the Supreme Court ruled in 1980 that voting rights advocates had to prove intentional discrimination in order to invalidate an electoral system, Congress amended the law to make clear that minority voters only have to prove a discriminatory result — a considerably easier thing to do than proving intentional discrimination. Discriminatory result has been the standard since then, upheld by the Supreme Court and enforced by the lower courts.

He points out that the arguments from Alabama ranged from narrow to more extreme, about interpreting the 1982 amendments to the Voting Right Act.

Pildes said that there is an argument that the Voting Rights Act doesn’t apply to legislative redistricting plans even though the court has historically applied the act to those plans. “Or,” he says, “even more dramatically, that if [the Voting Rights Act] does apply in the way the lower court held here, then the act is unconstitutional.”

Black voters contend that the state’s argument is that it has to emphasize the considerations of race in order to be successful in its effort to eradicate racial discrimination.

The Supreme Court’s three liberal justices – Latina, White and Black women – sought during voting-rights arguments Tuesday to wrench the narrative of a colorblind America from the conservatives who currently dominate the bench.

The case on Tuesday focused on Section 2 of the VRA, which is supposed to prohibit electoral practices that deny a person the right to vote based on their race.

“They were, in fact, trying to ensure that people who had been discriminated against, the freedmen during the Reconstruction period, were actually brought equal to everyone else in society. … That’s not a race-neutral or race-blind idea, in terms of the remedy,” she said.

Justice Sonia Sotomayor, the court’s first Hispanic justice, stressed that Section 2 was intended to ensure that “a particular racial minority … can equally participate.”

The high court’s conservatives largely held their fire. Neil Gorsuch did not ask any questions. Justice Clarence Thomas posed a couple of modest questions to Edmund LaCour, the Alabama solicitor general, but no questions to the lawyers that were challenging the plan, Deuel Ross and Abha Khanna or to the US solicitor general.

Equal Protection and the Voting Rights Act of 1965: A Critique of the 14th Amendment and the Congregational Sixteenth Amendment

Thomas, who is Black, has argued that racial remedies violate the Fourteenth Amendment guarantee of equal protection and, in practice, stigmatize the groups they are intended to benefit.

Jackson said that’s not true. “I don’t see that Congress is requiring race neutrality,” she said, observing that the law was intended to ensure that no “particular class of citizens” has “less opportunity” than another. “So it seems as though Congress is authorizing the consideration of race,” she said.

Washington. At her confirmation hearings in March, she said she would interpret the Constitution according to how it was understood at the time it was adopted.

She spoke about the meaning of the Voting Rights Act of 1965, a civil rights landmark. The immediate question in the case was whether a congressional map drawn by Alabama lawmakers had violated the act by diminishing Black voters’ power.

But a larger question loomed in the background: Was the act itself in tension with the 14th Amendment’s equal protection clause, which was adopted after the Civil War?

Voting Rights in Michigan: Why the Electoral Count Act is needed now that Congress is deadlocked and the Right-wing can supersettle

The seat that Veronica is trying to win in suburban Detroit is important to the party because of its importance in taking back the chamber. She told one voter that she was tired of seeing cuts to older communities like ours. “We need to reinvest here.”

The struggle for the Michigan Senate, as well as clashes for control of several other narrowly divided chambers in battleground states, have taken on outsize importance at a time when state legislatures are ever more powerful. With Congress often deadlocked and conservatives dominating the Supreme Court, state governments increasingly steer the direction of voting laws, abortion access, gun policy, public health, education and other issues dominating the lives of Americans.

The Electoral Count Act, which appears to have a majority in the Senate, could make it easier for Congress to circumvent this. If the act passes, the danger is not restricted to the act. Even if Congress closes the loopholes in the certification of electoral votes, the right-wing majority on the Supreme Court could still give state legislatures free rein to run roughshod over the popular will.

Why would the Constitution’s framers and ratifiers attempt to reinscribe the fundamental assumption of the Articles of Confederation in a document that is designed to supersede them? ” There is no support at all in the constitution, the pre-rat”, stated a legal scholar and former judge on the US Court of Appeals for the Fourth Circuit.

The election deniers are running in Arizona, Nevada, Michigan, Pennsylvania and other places. Victory for the election deniers in any state would, in combination with any version of the independent state legislature theory, put the United States on the glide path to an acutely felt constitutional crisis. We may face a situation where the voters of Nevada or Wisconsin want Joe Biden (or another Democrat) for president, but state officials and lawmakers want Trump, and have the power to make it so.

The manner in which conservatives have been rejecting the language of American democracy is not unlike that of the John Birch Society which claimed that the United States was not a democracy. There is a separation between the words “democracy” and “republic” that isn’t really present in practice. The terms “republic” and “democracy” were used interchangeably in both common and philosophy during the 18th century.

New emails from the House Select Committee on 2020 Elections: The role of Supreme Court Justice Clarence Thomas in certifying the results of the 2020 election

A lawyer for former President Donald Trump described Supreme Court Justice Clarence Thomas as “key” to Trump’s plan to delay Congress’ certification of President Joe Biden’s victory through litigation after the 2020 election, according to emails recently turned over to the House select committee investigating January 6.

In December of 2020, as Trump’s lawyers were expected to challenge the election result in federal court, Eastman had asked the issue in an email. The data used in the case was not true, even though Trump and his attorneys were aware that, according to another email.

It was first reported that the email had reference to Thomas. It is part of a tranche of emails the House has obtained from Eastman, under an order from a court, that are still subject of litigation before an appeals court. The emails were available through a link in a court filing submitted by the House committee early Wednesday.

US District Judge David O. Carter previously determined that the emails show evidence of potential criminal activity in Trump’s efforts to reverse his electoral loss, finding the Trump team was using litigation not to obtain court relief but to meddle with the congressional proceedings. Some of the emails that Carter said showed evidence of obstruction of an official proceeding should be released to the House committee.

If the legal team can just get a case pending before the Supreme Court by January 5, they should try to get something positive written by a judge or a justice to hold up the case, as written by Chesebro in one of the new emails.

But, he wrote, “a lot can happen in the 13 days left,” and having the election results of multiple states under review in the courts and in state legislatures could bolster the push to extend Congress’ debate over certifying the results.

In an email two days later, Chesebro said that having Georgia “in play” on a Supreme Court filing could be “critical.” Vice President Mike Pence could refuse to open proceedings for the Georgia case, if there was a case pending before the Supreme Court.

It would force the court to act on the petitions if a move by Pence were to happen. “Trump and Pence have procedural options available to them starting on January 6 that might create additional delay, and also might put pressure on the Court to act,” Chesebro wrote.

Source: https://www.cnn.com/2022/11/02/politics/clarence-thomas-trump-eastman-emails/index.html

A note on the case of a fake verification, which the House General Counsel Doug Letter told the appeals court on December 31, 2020: Why the president signed a verification when specific numbers were included

There is a publicly visible link to the files, which House General Counsel Doug Letter told the appeals court on Wednesday was a mistake.

On December 1, the president signed a verification, but he was made aware that some of the allegations were false, according to a letter written to two lawyers on December 31, 2020. He wouldn’t be accurate if he signed a new verification with knowledge and reference. The President and his lawyers are likely going to be pursued by a US Atty after all the dust settles on this.

Eastman also wrote that a White House adviser and lawyer, Eric Herschmann, had “concern about the President signing a verification when specific numbers were included” regarding votes cast. He was specifically concerned about numbers that implied that felons, dead people and people who had moved had voted improperly, another Eastman email showed.

At the time that the lawyers were in discussions, Trump was in flight, returning to the White House, and was set to consult with Herschmann about signing the verification, another December 31 email from Eastman said.

Elections lawyers Cleta Mitchell and Alex Kaufman then suggested using a notary over zoom – instead of having Trump sign the document with the language “under penalty of perjury,” according to the emails.

The Rise and Fall of the Republican Establishment: What Do We Need to Know to Protect the Rights of Women and Children in the 21st Century?

The Martin Luther King Professor of Law at the University of California, Davis is also the author of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.” Her own views are expressed here. Read more opinion on CNN.

Republicans may just be getting started, as voters are already making their voices heard. Some may think better of doing abortion after Tuesday. It’s good politics for state lawmakers with uncompetitive seats to ban abortion and that could have repercussions for Dobbs in the future.

There is a chance that this could happen to Dobbs. The end of the federal guarantee for abortion rights is seen by some as the beginning of the end for our rights to privacy by the Supreme Court.

Midterm voters were certainly reacting to what the Supreme Court did. There is not a lot of precedent for the court to destroy a constitutional right in a way that was mockery and condescending. Justice Samuel Alito observed that more than half of the electorate were female. If people didn’t like what the court had done, he suggested, they could just go out and vote. Last night, voters certainly took Alito’s advice.

More than a dozen states implemented trigger laws that banned all abortions, most without exceptions for rape or incest; others revived 19th century laws that barred almost all abortions. State laws made it harder for physicians to defend themselves when they intervened in cases of medical emergency, narrowing the kind of health threats to which physicians could respond or requiring physicians, rather than prosecutors, to prove that they needed to save a patient’s life.

Legislators want to go even further. In Texas, legislators have threatened the CEOs of major corporations with felony charges for reimbursing their employees for traveling out of state for abortion. There are no exceptions for abortion in the Idaho Republican platform.

And those are just the concrete consequences. But Americans’ reactions to Roe v. Wade over the past five decades were about much more than what the Supreme Court said in 1973. For a wide variety of movements and individual Americans, Roe became a symbol: for equality for women, for judicial overreaching, or even for a broad idea of reproductive justice.

Supreme Court Justices Clarence Thomas, Samuel Alito and Neil Gorsuch are in the process of putting the scaffolding for a decision that could change election practices all over the country.

The justices who supported them during oral arguments in the North Carolina case were conservative Justices Amy Coney Barrett and Neil Patrick Harris. The question is whether the trio’s most radical view – effectively giving state legislatures control of elections, without oversight from state judges – would prevail.

“I think the worst thing we could do, although it might be attractive for some reasons,” Alito said, “is to say, well there is a limit (on state court action) but it’s one that in practice can never be exceeded. So we have a standard but … it doesn’t mean anything.”

“I’d like to step back a bit and think about consequences,” liberal Justice Elena Kagan said, “because this is a theory with big consequences. If the courts think that the legislature engaged in the most extreme forms of gerrymander, there is no constitutional remedy for that. It would say that legislatures could enact all manner of restrictions on voting.”

Kagan added: “It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated.”

Chief Justice John Roberts seemed to be in favor of setting new boundaries on state judges in election controversies.

Two years ago, their sentiment appeared in cases from Pennsylvania and Wisconsin as well as the pending North Carolina case. They were with the man at times.

In March, Alito wrote for the trio as they dissented when the majority let a judicially ordered North Carolina map take effect as litigation continued.

The county recount standards were too different to meet guarantees of equal protection and due process according to the high court.

Rehnquist wrote a separate opinion going further, as he interpreted the Constitution’s Electors Clause, which says, “Each State shall appoint, in such Manner as the Legislature thereof may direct,” electors for president and vice president. That provision, Rehnquist said, “leaves it to the legislature exclusively to determine the method” for appointing presidential electors.

Thomas is the only member of the 2000 bench still sitting, and he was one of only two justices who signed onto Rehnquist’s opinion (the other was Antonin Scalia).

The lawyers who stood at the pulpit to reject the state independent legislature theory in North Carolina did not back down from their views and he did not change his mind.

“Justice Thomas, if I may, in two decades of arguing before you,” Katyal said, “I have waited for this precise case because it speaks to your method of interpretation, which is history.”

But Thomas, appointed in 1991 by President George H.W. Bush, suggested his alternative view of constitutional history would edge out state court judges.

The leader of the North Carolina legislature brought the case against the Supreme Court of the state because it threw out the congressional district map that was drawn in favor of Republicans.

Last session, he authored the New York State Rifle & Pistol Association v. Bruen decision, based on a historical reading of the Second Amendment. The court determined that a person has a right to have a weapon outside of the home.

Joined by five other justices on the right wing, Thomas said a state’s gun control measures must be measured by the nation’s history, rather than modern claims of public safety. He said that the Second Amendment requires courts to assess whether modern firearms regulations are in line with their text and historical understanding.

Lawyer David Thompson, representing members of the North Carolina legislature before the justices on Wednesday, invoked Bruen for historical view of legislative power.

“We think the way to think about this is consistent with the court’s opinion in Bruen last term, where it looked very focused on the time of the founding,” Thompson said.

Thompson told the justices that the scope of legislative authority was governed by the commission in which it was exercised. The commission is contained in the United States Constitution, and federal law alone places substantive restrictions on state legislators performing the tasks assigned to them.

On Wednesday, as his questions reflected that sentiment, Alito also addressed larger concerns raised by Kagan and legal scholars who have cautioned against adoption of the independent state legislature approach.

Gorsuch, a 2017 appointee of former President Donald Trump, similarly took a page from his past views regarding the constitutional muscle of legislatures.

The former president’s call to end the Constitution for a 2020 election redo has rightly been met with ridicule and eyerolls (although less condemnation from GOP leaders). There are other forces that could endanger American democracy, even with Trump still in the running for the presidency.

Georgia Sen. Raphael Warnock, on the heels of his runoff victory on Tuesday, pointed to another kind of rulemaking from GOP-led state legislatures – specifically restrictive voting laws passed in the wake of Trump’s 2020 loss. He alleged “voter suppression,” alluding to the 2021 law that shortened the state’s early voting period, even though that didn’t stop his voters from turning out to deliver him a full six-year term. Republicans, in turn, pointed to that turnout as evidence that Democratic votes hadn’t been suppressed.

In a rare bright spot for democracy in the wake of the US Capitol insurrection, Walker – unlike Trump after 2020 – conceded his loss. His defeat follows that of many of Trump’s election-denying midterm candidates in swing states last month.

But looking to the next election, there’s a brewing fight over which states should have the first say in the presidential primary process. Democrats like President Joe Biden, for example, have argued they’re trying to democratize the process by giving more diverse states more influence. But the looming changes are primed to create another nuts-and-bolts dispute between the parties and raise questions for everyone else about why the parties should control the system in the first place.

The most core question raised this week is being put to Supreme Court justices. They looked at three hours of arguments to consider whether everyone has been reading the Constitution correctly for the last two hundred years.

The theory was popularized by a minority opinion from then-Chief Justice William Rehnquist when the Supreme Court decided the 2000 presidential election for George W. Bush – and it has percolated ever since.

“The way our democracy is supposed to work is people are supposed to choose the representatives, not the other way around,” said North Carolina Attorney General Josh Stein, who appeared on CNN’s “The Lead” with Jake Tapper Wednesday.

Stein said Republicans would have had a seat advantage over the Democrats under the congressional map drawn by the legislature. Under the map approved by the state Supreme Court and after last month’s midterm elections, the delegation will be an even 7-7 when the new Congress is seated in January.

Are the Caucuses Going to South Carolina? Early voting in Georgia has been a big problem for Republicans in the last 20 years, but they aren’t going away

Georgia’s secretary of state, Republican Brad Raffensperger, rejected that idea when appearing on “CNN This Morning” Wednesday, arguing that wait times were minimal across the state.

It is not clear if Georgia’s results, which followed a disappointing finish for the GOP in twin 2021 Senate runoffs, could force Republicans to reconsider their efforts to discourage early voting and instead push it like Democrats.

There’s a brewing standoff among Republicans, who have endorsed the recent tradition of keeping the Iowa caucuses along with primaries in New Hampshire and South Carolina as the first states to have their say ahead of 2024.

Biden wants South Carolina, the first primary he won in 2020, to go first and to move the primary in the increasingly purple state of Georgia much higher on the calendar.

Iowa Republicans oversaw delayed caucus results in 2012 that saw former Pennsylvania Sen. Rick Santorum robbed of momentum from his narrow win after it appeared, wrongly, that ultimate GOP nominee Mitt Romney had won the caucuses.

Both political parties need to buy in to whatever we do, Raffensperger said. “They need to start doing some talking to each other.”

The system of this type, which has evolved over two hundred years, only offers voters a choice of two real choices.