No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
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June 22, 2022 (Wednesday)
There’s a lot going on, but I did not take a night off over the weekend and it’s catching up to me. Going to take the night off and get a good night’s sleep so I can be back at it tomorrow with a clear head for the next public hearing of the January 6 committee.
Buddy, too, is hard at it these days as the lobsters are starting to come in. Here was the view on his way to work at a quarter past four this morning. He labeled it: “Headed out to the gold fields.”
[Photo by Buddy Poland.]
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June 23, 2022 (Thursday)
Then-president Trump’s demand of Acting Attorney General Jeffrey Rosen on December 27, 2020 was simple: “Just say the election was corrupt and leave the rest to me and the Republican congressmen." But the election wasn’t corrupt, and Rosen wouldn’t do as Trump asked.
Today’s fifth public hearing of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol was a barnburner. It explored Trump’s attempt to pervert the Department of Justice (DOJ), whose mission is “to enforce the law and defend the interests of the United States…and to ensure fair and impartial administration of justice for all Americans,” to the service of Trump alone.
By now, the committee has firmly established that there was no evidence for Trump’s insistence that the election was stolen from him. Instead, recounts, court cases, and investigations all showed that Biden was the true victor by more than 7 million votes in the popular count, and by 306 to 232 votes in the Electoral College, the same count by which Trump won in 2016 and which he called a “massive landslide.” There was no evidence for his claims, and Trump knew that. His own appointees, including his attorney general William Barr, had told him repeatedly that the incidents he cited as proof were not, in fact, real. Barr called his arguments “bullsh*t.” But Trump continued to push them, quite possibly simply to lay the groundwork for keeping control of the government by force.
Led by Representative Adam Kinzinger (R-IL), the committee members today questioned officials who served in the Trump administration at the end of his term: Jeffrey Rosen, who replaced Barr as acting attorney general in December 2020; Richard Donoghue, acting deputy attorney general and also a 20-year military veteran; and Steven Engel, assistant attorney general for the Office of Legal Counsel during Trump’s administration. Engel helpfully explained that the Office of Legal Counsel is essentially the lawyer for the attorney general and the president.
Rosen told the committee that Trump repeatedly pressured him and Donoghue to say that the 2020 election had been marred by fraud. But while they investigated his accusations, they found no evidence to support them. So Trump began to pressure them through public statements, telling television viewers as early as November 29, 2020, that the DOJ was “missing in action,” its leaders refusing to do their job. Members of Congress, who knew the allegations were false, echoed him. They included Louie Gohmert (R-TX), Andy Biggs (R-AZ), Paul Gosar (R-AZ), Matt Gaetz (R-FL), Jim Jordan (R-OH), and Mo Brooks (R-AL).
On December 21, a number of members of Congress met with Trump. Marjorie Taylor Greene (R-GA) was the only newly elected member; she would not be sworn in until January 3. The rest appeared to be members of the far-right so-called Freedom Caucus, formed in 2015 by Mark Meadows, then a congress member from North Carolina, and Mick Mulvaney, then a representative from South Carolina. (Both Meadows and Mulvaney would serve as Trump’s chief of staff during his presidency.) Jordan was the caucus’s first chair; Meadows was its second; Biggs was its third. Scott Perry (R-PA), who was there, is close to Jordan and Meadows.
Meadows, then White House chief of staff, tweeted that they had met to fight back against “voter fraud.” The next day, Perry went back to the White House with an environmental lawyer from the DOJ, Jeffrey Clark.
On December 24, Trump mentioned Clark to Rosen in passing. On December 26, Rosen asked Clark why Trump knew him. Clark admitted that he had met with the president when Perry took him—unexpectedly—to the White House. Clark was defensive, in part, perhaps, because there are strict guidelines to keep the DOJ and the White House separate to make sure there is neither impropriety nor the implication of impropriety when the DOJ investigates crimes. Clark promised Rosen it would not happen again.
And yet, Perry continued to text Meadows to urge him to put Clark at the head of the DOJ in place of Rosen. Trump told Perry to call Donoghue to push Clark’s elevation, saying Clark would get into the job and, unlike Rosen, “get in there and do some stuff.”
As Trump continued to press, he called Rosen and Donoghue at their homes late on December 27. Donoghue took notes. When Donoghue said the “DOJ can’t and won’t snap its fingers + change the outcome of the election,” Trump replied it didn’t have to. “Just say it was corrupt and leave the rest to me and the Republican congressmen.”
On December 28, Clark emailed to Rosen and Donoghue a letter alleging that the DOJ had “significant concerns that may have impacted the outcome of the election in multiple States.” It urged state legislatures to “consider objections” to the certified ballots and “decide between any competing slates of elector certificates.” The allegations in this letter were straight up false, but Trump wanted the Department of Justice to give them credence. Clearly, there was no time to actually conduct another investigation into the election before January 6; the letter was designed simply to justify counting out Biden’s ballots or, failing that, to create popular fury that might delay the January 6 count.
This attempt to use an investigation to corrupt politics echoed Trump’s attempt to get Ukraine president Volodymyr Zelensky to announce an investigation into the actions of Hunter Biden in 2019 to seed the idea in the U.S. press that Biden was corrupt. It also recalled the 2016 drumbeat of an investigation into Secretary of State and Democratic nominee Hillary Clinton’s use of a private email server. Indeed, the Republicans have deliberately used “investigations” to convince the public of things that are not true since 1994 investigations of “voter fraud” that elected Democrats, and even back to Senator Joe McCarthy’s “investigations” of communists in the government in the 1950s. In each case, the goal was not actually to find the truth; it was to plant in the public mind the idea that there were crimes being committed…for why would anyone investigate if something wasn’t amiss?
Clark wrote the letter on official DOJ letterhead and left places for Rosen and Donoghue to sign it. Both of them rejected it out of hand, in strong language. Clark continued to push, and then to call witnesses and start his own investigation. Clark was working with Ken Klukowski, who arrived at the DOJ on December 15 and who was working with John Eastman, the lawyer pushing the idea of Pence counting out the Biden electors in states Trump wanted to win, suggesting that Trump had installed a conspirator directly in the DOJ to work with Eastman on the project.
On December 31, Trump asked both the DOJ and the Department of Homeland Security to seize voting machines that he insisted had shifted votes; Rosen said they had investigated and the machines were fine. At the end of that meeting, Trump warned that he thought he should just get rid of Rosen and Donoghue and put Clark in charge because then things would get done.
Rosen continued to debunk the election claims Trump and his allies were sending and tried to stop Clark from egging Trump on; Clark doubled down and demanded they sign the letter. On January 3, Clark told Rosen that Trump had offered him the job of attorney general, replacing Rosen, and that he would decline the job if Rosen signed the letter.
Rosen asked for a meeting with Trump, Engel, and White House counsel Pat Cipollone. At that point, only four people knew what Clark and Trump were up to, but Rosen now included the assistant attorneys general, all of whom said they would resign if Trump replaced Rosen with Clark. Both Rosen and Donoghue vowed to quit, too. But White House call logs—which the Trump administration tried to keep private—show that Trump and Clark had been in constant contact, violating official policy, and by 4:19 that afternoon, Trump was already referring to Clark as the attorney general.
“What have I got to lose?” Trump demanded. In a meeting of more than two and a half hours, Rosen, Donaghue, and all the other lawyers present except Clark warned Trump that there would be mass resignations from the DOJ if he went through with his plan, and that his decimation of the DOJ would overshadow all of his claims about the election. Cipollone called the idea a “murder-suicide pact.” Trump backed down then, but at the Ellipse three days later, he repeated all his debunked claims about the election.
Trump called neither Rosen nor Donoghue on January 6, although they spoke to all other top lawmakers, including Vice President Mike Pence.
After the attack on the Capitol, the congress members who had participated in the December 21 planning meeting asked for presidential pardons. Those members included Biggs, Greene, Brooks, Gaetz, Gohmert, and Perry. (Gaetz is under investigation for sex trafficking a minor; presumably a blanket pardon would have covered that issue, too.) Biggs, Gaetz, and Gohmert sit on the House Judiciary Committee, which oversees the DOJ.
Jordan asked more generally about pardons for members of Congress who had worked with Trump to overturn the election. Trump awarded Jordan the Medal of Freedom, the nation’s highest civilian honor, on January 11, 2021. House Minority Leader Kevin McCarthy (R-CA) initially named Jordan, the top Republican on the Judiciary Committee, to serve on the January 6th committee and withdrew the other Republicans when House Speaker Nancy Pelosi (D-CA) rejected Jordan and Jim Banks (R-IN).
And Brooks wrote to Trump’s executive assistant Molly Michael, saying “President Trump asked me to send you this letter…. I recommend that President give general (all purpose) pardons to…[e]very Congressman and Senator who voted to reject the electoral college vote submissions of Arizona and Pennsylvania.”
When interviewed about the letter, Clark repeatedly took the Fifth Amendment against self-incrimination and invoked executive privilege. Yesterday, federal investigators executed a search warrant on Clark’s home in suburban Virginia. They seized his electronic devices.
At the end of today’s hearing, Representative Liz Cheney (R-WY), the January 6 committee’s vice chair, directly addressed Trump supporters: “It can be difficult to accept that President Trump abused your trust, that he deceived you. Many will invent excuses to ignore that fact. But that is a fact. I wish it weren’t true, but it is.”
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June 24, 2022 (Friday)
At yesterday’s hearing of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, we heard overwhelming proof that former president Trump and his congressional supporters tried to overturn the will of the voters in the 2020 presidential election and steal control of our country to keep a minority in power.
Today, thanks to three justices nominated by Trump, the Supreme Court stripped a constitutional right from the American people, a right we have enjoyed for almost 50 years, a right that is considered a fundamental human right in most liberal democracies, and a right they indicated they would protect because it was settled law. Today’s Dobbs v. Jackson Women’s Health Organization decision overturned the 1973 Roe v. Wade decision that recognized a woman’s right to terminate a pregnancy. For the first time in our history, rather than conveying rights, the court has explicitly taken a constitutional right away from the American people.
These two extraordinary events are related. The current-day Republican Party has abandoned the idea of a democracy in which a majority of the people elect their government. Instead, its members have embraced minority rule.
The Dobbs decision marks the end of an era: the period in American history stretching from 1933 to 1981, the era in which the U.S. government worked to promote democracy. It tried to level the economic playing field between the rich and the poor by regulating business and working conditions. It provided a basic social safety net through programs like Social Security and Medicare and, later, through food and housing security programs. It promoted infrastructure like electricity and highways, and clean air and water, to try to maintain a basic standard of living for Americans. And it protected civil rights by using the Fourteenth Amendment, added to the U.S. Constitution in 1868, to stop states from denying their citizens the equal protection of the laws.
Now the Republicans are engaged in the process of dismantling that government. For forty years, the current Republican Party has worked to slash business regulations and the taxes that support social welfare programs, to privatize infrastructure projects, and to end the federal protection of civil rights by arguing for judicial “originalism” that claims to honor the original version of the Constitution rather than permitting the courts to protect rights through the Fourteenth Amendment.
But most Americans actually like the government to hold the economic and social playing field level. So, to win elections, Republicans since 1986 have suppressed votes, flooded the media with propaganda attacking those who like government action as dangerous socialists, gerrymandered congressional districts, abused the Senate filibuster to stop all Democratic legislation, and finally, when repeated losses in the popular vote made it clear their extremist ideology would never again command a majority, stacked the Supreme Court.
The focus of the originalists on the court has been to slash the federal government and make the states, once again, the centerpiece of our democratic system. That democracy belonged to the states was the argument of the southern Democrats before the Civil War, who insisted that the federal government could not legitimately intervene in state affairs. At the same time, though, state lawmakers limited the vote in their state, so “democracy” did not reflect the will of the majority. It reflected the interests of those few who could vote.
State governments, then, tended to protect the power of a few wealthy, white men, and to write laws reinforcing that power. Southern lawmakers defended human enslavement, for example, a system that concentrated wealth among a few white men. Challenged to defend their enslavement of their neighbors in a country that boasted “all men are created equal,” they argued that enslavement was secondary to the fact that voters had chosen to impose it.
The originalists on today’s Supreme Court have repeatedly emphasized that the states, rather than the federal government, should determine the laws under which we live. So, for example, in the Shinn v. Martinez Ramirez case decided on May 23, the court overturned a previous decision to say that two men on Arizona’s death row who had received ineffective legal assistance at their trials could not introduce new evidence at the federal level that would exonerate them. The decision said that such a review would “intrude on state sovereignty.”
And today, by a vote of 6 to 3, the court overturned Roe v. Wade, arguing that the right to determine abortion rights must be returned “to the people’s elected representatives” at the state level, even as states are restricting the right to vote. Justice Samuel Alito, who wrote the majority opinion, claimed that the Constitution does not protect the right to abortion because it does not mention that right. While the court says it is willing to protect some rights not mentioned, they must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” In a concurring decision, Justice Clarence Thomas suggested the court should also revisit the right to use birth control and to engage in gay relationships or marriage.
We are still waiting on another potentially explosive decision in West Virginia v. Environmental Protection Agency, in which the court will decide if Congress can delegate authority to government agencies as it has done since the 1930s. If the court says Congress can’t delegate authority, even if it waters that argument down, government regulation could become virtually impossible. Having taken the federal government’s power to protect civil rights, it would then have taken its power to regulate business.
And yet, just yesterday, the court struck down a New York state law restricting the concealed carrying of guns on the grounds that history suggested such a restriction was unconstitutional. In fact, in both the Dobbs decision and the New York State Rifle & Pistol Association v. Bruen, the court used stunningly bad history, clearly just working to get to the modern-day position it wanted. Abortion was, in fact, deeply rooted in this nations history not only in the far past but also in the past 49 years, and individual gun rights were not part of our early history.
The court is imposing on the nation a so-called originalism that will return power to the states, leaving the door open for state lawmakers to get rid of business regulation and gut civil rights, but its originalism also leaves the door open for the federal government to impose laws on the states that are popular with Republicans. Already, the same day that the court handed down a decision striking down Roe v. Wade on the grounds that laws about abortion should come from the states, Republican politicians are calling for a federal law banning abortion everywhere.
In its imposition of minority rule first by insisting on state’s rights and then by demanding federal protection of laws it wants, the Republican Party is echoing the southern Democrats before the Civil War. Like today’s Republicans, as they lost support they entrenched themselves first in the machinery of the federal government and then in the Supreme Court.
And, finally, when northerners realized that enslavers had gamed the system to spread slavery across the nation, they came together from all different parties to protest and to stand against that attempt to destroy democracy and hand the country over to a few rich men. Ironically, that was the birth of the Republican Party that, under Abraham Lincoln, worked to create a government “of the people, by the people, [and] for the people.”
Tonight, there are protests around the country.
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June 25, 2022 (Saturday)
Today marks the anniversary of the Battle of the Little Bighorn in 1876, when Lieutenant Colonel George Armstrong Custer, who led the 7th Cavalry, lost his entire command to Lakota warriors after falling on them unexpectedly in their own territory. The only army survivor of the battle from Custer’s immediate command was a horse, Comanche, who became the 7th Cavalry’s mascot, trotted out draped in ceremonial black for years after the event itself.
The road to the Little Bighorn started during the Civil War. In 1862, Santee warriors in Minnesota rose up against settlers there after the U.S. government, financially strapped by the Civil War, stopped providing the food promised to the Santee by treaty. Soldiers put down the “Santee Uprising”—now known as the Dakota War—brutally, and terrified survivors fled west to what is now Montana to take shelter with their relatives, the Teton Lakotas.
The Lakotas welcomed their eastern relatives but discounted their horrific tales of the revenge enacted on the Santee insurgents (although the army had, in fact, hanged 38 Santee in December 1862 in the largest mass execution in American history). The Lakotas rarely saw an American, and they could not believe the lone traders who passed through their territory were a threat.
Lakota nonchalance ended abruptly in November 1864, when Northern Cheyennes, their allies to the south, straggled into Lakota villages with even worse stories than the Santees had told: stories of the massacre of women and children at Colorado’s Sand Creek, where drunken soldiers first killed surrendering Cheyennes and then mutilated their bodies, taking human remains as trophies. By 1864, American miners were pushing into Lakota territory over the new Bozeman Trail that stretched from the old Oregon Trail up to the Montana gold fields. Stories of the Sand Creek Massacre convinced the Lakotas that the interlopers must be resisted.
By 1865, the conflicts, now known as the Lakota War, had escalated to the point that after Confederate General Robert E. Lee’s surrender at Appomattox Court House, army leaders transferred General William Tecumseh Sherman from the southern battlefields to the Plains. To his intense frustration, he found it impossible to protect both the Union Pacific Railroad, which stretched across the middle of the country, and the Bozeman Trail, which went north, from Lakota attacks.
Caught between these two demands, the government chose to protect the railroad. In 1868, it abandoned the Bozeman Trail, giving the Lakotas control of what became known as the Great Sioux Reservation. This reservation covered most of the land from the Missouri River that runs through the center of what is now South Dakota west to the Big Horn Mountains. The treaty each side signed guaranteed that land to the Lakotas forever.
Forever turned out to be short.
Rising Lakota leaders Sitting Bull and Crazy Horse vowed to keep Americans off their land, but miners wanted gold and businessmen wanted railroads. By 1874, army officers decided to build a fort in the Black Hills to intimidate the warriors skirmishing with intruders. In 1875, they sent out the Boy General, George Armstrong Custer, along with a thousand soldiers, teamsters, scouts, and reporters, to find a place to build. Custer brought back ideas for a fort, but, more importantly, he also brought back news of gold in “them thar hills”—hills that belonged to the Lakotas.
Within months, prospectors in the Black Hills had thrown up boomtowns like Deadwood, which attracted about twenty thousand people in its first year. The government tried to buy the Black Hills, but Lakota leaders refused. “We want no white men here,” Sitting Bull said. “The Black Hills belong to me. If the whites try to take them, I will fight.”
Government officials interpreted Lakota refusal to sell as hostility. In December 1875, authorities told Sitting Bull, Crazy Horse, and other “hostiles” to report to agencies more than 250 miles away on the eastern side of the reservation by the end of January, or to expect war. For their part, Sitting Bull and Crazy Horse, who had never frequented the agencies, made no attempt to set off on a long journey in the brutal cold of a Dakota winter. It’s not clear they even got the message.
So on February 1, 1876, the War Department commanded the army to subdue the “hostile” Lakotas. A month later, General George Crook led 800 men into Lakota territory, hoping to fight the Indigenous Americans while their ponies were still weak from the winter. In mid-March, half of Crook’s men attacked a camp of Cheyennes on the Powder River, mistaking it for a village of Crazy Horse’s men. Cheyenne survivors took refuge with Sitting Bull, who had had enough. “We are an island of Indians in a lake of whites,” he told his people. “We must stand together, or they will rub us out separately. These soldiers have come shooting; they want war. All right, we’ll give it to them.”
Sitting Bull sent runners across the reservation, calling men who wanted to fight to meet at the Rosebud River to stand against the soldiers. By spring 1876, thousands of men had rallied to him. In early summer 1876, Sitting Bull’s camp was the largest in Lakota history; there were at least 1400 lodges, with individual men sleeping on their own or as guests in others’ tepees.
Badly underestimating the number of warriors he faced, Crook planned a three-pronged attack. Columns from west, east, and south would converge where the Lakota were hunting. Crook’s plan was crippled on June 17, when his own column, moving up from the south, crossed Lakota warriors near the Rosebud River. In a confusing battle obscured by dust and gunpowder, the Lakota managed to knock Crook’s men out of the campaign for the next six weeks.
Those weeks would prove crucial. As the other two columns continued their march, Indigenous Americans celebrating the outcome of the Battle of the Rosebud continued to pour into Sitting Bull’s camp, bringing the numbers up to about 7000 people, 1800 of whom were warriors. In the vibrant atmosphere, families visited, couples courted, and warriors danced. The numbers meant that the Lakotas and their allies had to keep moving to provide enough food for the horses. By June 24, they had settled on the river they called the Greasy Grass, the one soldiers knew as the Little Bighorn.
Unaware of the two columns approaching, the Lakotas were watching Crook’s soldiers but knew his battered troops were hunkered down. On June 25, a hot, buggy day, the Lakotas were lazing, the women digging wild turnips and the men swimming and lying about in the heat, when Custer’s troops fell on one end of their mile-long encampment. The soldiers cut down some women and children, but the Lakotas mounted their horses quickly.
Custer had divided his men into three battalions. He had sent one under Captain Frederick Benteen up the valley and out of action, and sent one under Major Marcus Reno to attack the camp. Recovering from their initial surprise, the Lakotas chased Reno and his men into the bluffs on the other side of the river. Then Custer’s battalion entered the fight. Custer ordered his men to dismount. The Lakotas promptly stampeded the army horses. Then, surrounding the desperate troops, the Lakotas killed the soldiers to a man. The U.S. Army lost 263 men that day, the Lakotas about 40.
“I feel sorry that too many were killed on each side,” Sitting Bull said, “but when Indians must fight, they must.”
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June 26, 2022 (Sunday)
Defenders of the Supreme Court’s decision overturning Roe v. Wade insist that Dobbs v. Jackson Women’s Health does not outlaw abortion but simply returns the decision about reproductive rights to the states.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Justice Samuel Alito wrote. He quoted the late Justice Antonin Scalia, who wrote: “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” This, Alito wrote, “is what the Constitution and the rule of law demand.”
The idea that state voters are the centerpiece of American democracy has its roots in the 1820s, when southern leaders convinced poorer Americans that the nation was drifting toward an aristocracy that ignored the needs of ordinary people. The election of 1824, when established politicians overrode the popular vote to put John Quincy Adams into the presidency, seemed to illustrate that drift. Supporters of Adams’s chief rival, Andrew Jackson, complained that a wealthy elite was taking over the country and, once in charge, would use the power of the federal government to cement their control over the country’s capital, crushing ordinary Americans.
The rough, uneducated Andrew Jackson, who promised to break the hold of northeastern elites on the government and return democracy to the people, began to articulate a new vision of American government. He insisted that democratic government should actually look like a democracy: it should be formed by the votes of local people, not those from some far-off capital, and it should be made up of those same ordinary voters, not eastern elites like Adams, whose wealthy president father, John, had reared his son to follow in his footsteps.
Jackson’s new vision made ordinary Americans central to the democratic system. Democratic government put the power into the hands of individual voters. Local and state government was the most important stage of this system; the federal government always ran the risk of being taken over by an elite cabal that could override the will of the people. It must always be kept as small as possible.
But there was a power play in this argument. By the time Jackson was elected president in 1828, white southerners already knew they were badly outnumbered in the nation as a whole. In that year, quite dramatically, a congressional fight over tariffs ended up with a strong bill that hurt the South in favor of northern manufacturing. Outraged, southern leaders with Vice President John C. Calhoun of South Carolina at their head claimed the right to “nullify” federal laws. (Jackson later said that one of the two regrets he had at the end of his term was that he “was unable to…hang John C. Calhoun.")
Congress lowered the tariff and the southerners backed down, but the idea that states were superior to the federal government only gained strength among southern enslavers as they felt the heat of a growing movement to abolish slavery. When it became clear that the U.S. might well acquire territory in Latin America, Democrats sympathetic to the South pushed back against the national majority that wanted to stop the spread of slavery into those lands by insisting on the doctrine of “popular sovereignty”: permitting the people who lived in a territory to decide for themselves whether or not to permit enslavement in it (although Mexico had outlawed enslavement in 1829). The U.S. acquired the vast territory of the American West in 1848, and two years later, Congress turned to popular sovereignty to try to avoid a fight about enslavement there.
The issue turned volatile in 1854 when Illinois Senator Stephen A. Douglas pushed through Congress a law overturning the 1820 Missouri Compromise and organizing two super-states out of the remaining land of the 1803 Louisiana Purchase. Rather than being free as the Missouri Compromise had promised, those huge states of Kansas and Nebraska would have enslavement or not based on the votes of those who lived there. This, Douglas insisted in his debates with Illinois lawyer Abraham Lincoln in 1858, was the true meaning of democracy:
“I deny the right of Congress to force a slaveholding State upon an unwilling people,” he said, “I deny their right to force a free State upon an unwilling people…. The great principle is the right of every community to judge and decide for itself, whether a thing is right or wrong, whether it would be good or evil for them to adopt it…. It is no answer to this argument to say that slavery is an evil, and hence should not be tolerated. You must allow the people to decide for themselves whether it is a good or an evil….” “Uniformity in local and domestic affairs,” he said, “would be destructive of State rights, of State sovereignty, of personal liberty and personal freedom.”
A strong majority in the U.S. opposed the extension of enslavement, but Douglas’s reasoning overrode that majority by carving the voting population into small groups the Democrats could dominate by whipping up voters with viciously racist speeches. Then, in the 1857 Dred Scott decision, a stacked Supreme Court blessed this plan by announcing that Congress had no power to legislate in the territories. In our system, this would mean that states taken over by pro-slavery zealots would eventually win enough power at the federal level to make enslavement national.
“A house divided against itself cannot stand," Lincoln warned Americans. “I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided. It will become all one thing or all the other. Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new—North as well as South.”
After the Civil War had proved the power of the federal government to defend the will of the majority from the tyranny of the minority, Congress found itself once again forced to override the will of state governments. When state legislatures put in place the Black Codes, which created a second-class status in the South for Black Americans, Congress passed and the states ratified the Fourteenth Amendment to the Constitution, overriding the Dred Scott decision to make Black Americans citizens, and establishing that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Almost 80 years later, it was this amendment—the Fourteenth—to which the Supreme Court turned to protect the rights of Black and Brown Americans, women, LGBTQ, and so on, from state laws that threatened their health and safety or treated them as second-class citizens. In using the power of the federal government to guarantee “the equal protection of the laws,” it made sure that a small pool of voters couldn’t strip rights from their neighbors. It is this effort today’s Supreme Court is gutting.
When today’s jurists talk of sending decisions about civil rights back to the states, they are echoing Stephen Douglas. “Citizens trying to persuade one another and then voting” is indeed precisely how democracy is supposed to work. But choosing your voters to make sure the results will be what you want is a different kettle of fish altogether.
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Why do i suspect Alito’s position will “evolve” when the fascists try to put through a national ban?
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unfortunately, his position already claims a ban is constitutional. he says that it’s not a protected right. so either the states, or the federal government are free to ban it.
where we’ll see his views suddenly evolve is if congress is able to pass national protections.
given how he was totally fine with overriding ny’s modest gun violence protections, im sure he’ll be more than happy to say they can’t
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June 27, 2022 (Monday)
Midday today, the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol announced a hearing “to present recently obtained evidence and receive witness testimony.” This is a surprise, and it was not until late tonight that reporters confirmed with their sources that the witness will be Cassidy Hutchinson, an aide to former president Trump’s chief of staff Mark Meadows. Hutchinson was the person who revealed that congress members had asked for pardons.
Legal analyst Asha Rangappa tweeted that she will be watching to see if Hutchinson can testify that Trump, Meadows, or members of Congress either knew about or planned violence for January 6 to pressure Pence. “If so, it brings them into crosshairs of seditious conspiracy,” she wrote.
While we have been focused on the Supreme Court’s decision to overturn Roe v. Wade more news has come out about the attempt of Trump and his allies to overturn the government.
Indeed, scholar of authoritarianism Ruth Ben-Ghiat today noted that there is a relationship between the insurrection and the radical Supreme Court decisions coming out. Justice Clarence Thomas has been writing opinions and footnotes that are to the right even of the rest of the radical court, and today he suggested he would like the court to revisit the 1964 New York Times v. Sullivan decision that provides some protection to media outlets from being sued for defamation by requiring a plaintiff to prove the outlet acted with “actual malice.” Thomas wants to make it easier to sue media outlets because, he wrote, the “New York Times and its progeny have allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’”
Ben-Ghiat tweeted that “[s]elf-protection (and protection for corrupt family members) is a huge driver of authoritarian behaviors. He feels threatened and will try and change the legal order to avoid scrutiny. Radicalized people no longer care about ‘how it looks’ to outsiders.”
In this particular case, Thomas’s beef is with the Southern Poverty Law Center (SPLC) for calling out Coral Ridge Ministries Media, Inc., as a “hate group” because of its opposition to homosexuality and gay rights. The SPLC identifies as hate groups any groups that “have beliefs or practices that malign or attack an entire class of people, typically for their immutable characteristics.” “SPLC’s ‘hate group’ designation lumped Coral Ridge’s Christian ministry with groups like the Ku Klux Klan and Neo-Nazis,” Thomas complained, and that hurt their ability to raise money.
Recent stories about the attempt to overturn the election include, most notably, Politico’s report of last Monday that British filmmaker Alex Holder filmed the Trump family from September 2020 through to mid-January 2021 to record for posterity their actions during the historic election. Apparently, this was a family project, and a number of the people on the campaign did not know.
Last Thursday, the January 6 committee interviewed Holder. It has also subpoenaed the tape and the raw footage.
There are continuing signs that the attempt to overturn the Democratic victory in 2020 and install Trump in office swept in more lawmakers than the committee identified last Thursday. When news broke last Tuesday that Wisconsin senator Ron Johnson, a Republican, had tried to hand off slates of false electors from Michigan and Wisconsin to then–Vice President Mike Pence at the Joint Session of Congress on January 6, Johnson initially passed it off as the work of an unnamed intern and called it a “non-story.”
Two days later, Johnson changed his tune, saying that the office of Representative Mike Kelly (R-PA) had sent the fake slates of electors and that Johnson, his chief of staff, and Trump-affiliated lawyer Jim Troupis had coordinated through text messages to figure out how to get the fake ballots to Pence. Kelly’s office promptly said Kelly “has not spoken to Sen. Johnson for the better part of a decade, and he has no knowledge of the claims Mr. Johnson is making related to the 2020 election.”
Meanwhile in Colorado, Tina Peters, an election official from Mesa County who has been charged with crimes for her role in trying to overturn the results of the election, on Friday told Nick Corasaniti and Alexandra Berzon of the New York Times that Lauren Boebert (R-CO) encouraged her “to go forward” with stealing and sharing voter information. That information, allegedly obtained through identity theft and illegal breach of computers, later turned up on a right-wing website and at a symposium organized by Mike Lindell, the owner of the MyPillow Company and a leading Trump supporter, alleging voter fraud. A press secretary for Boebert calls the claims false.
Today we also learned that the Department of Justice last week seized the phones of John Eastman, the man who wrote the infamous memo outlining plans for Pence to steal the election. In a lawsuit trying to get the phones released and all that was on them deleted, Eastman’s lawyers explained that federal prosecutors had stopped Eastman outside a restaurant in New Mexico on June 22. This was the same day federal agents executed a search warrant on Jeffrey Clark. Trump wanted to make Clark acting attorney general in the days before January 6 so he would work to overturn the election.
Right-wing insistence Friday night that the weekend would be characterized by “rage” as pro-choice supporters turned violent seemed designed to draw false equivalence between those who stormed the Capitol to overturn the election and those angry at the Supreme Court’s refusal to recognize a constitutional right that the American people have enjoyed for half a century—and, perhaps, to justify brutality to silence those protests. In fact, aside from sporadic violence against the protesters rather than from them, the protests were peaceful.
There is another link between the recent Supreme Court decisions and the January 6 attempt to destroy our democracy that creates an unprecedented situation. If Trump is prosecuted as the leader of an attempted coup, a coup that may have included some of those who voted for Trump’s three Supreme Court nominees, what does that do to their positions on the court?
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June 28, 2022 (Tuesday)
Today’s testimony before the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol was explosive. It tied former president Donald Trump and his chief of staff Mark Meadows directly to a plot to overturn the U.S. government.
The witness was Cassidy Hutchinson, a 25-year-old aide to Meadows and congressional liaison who was well known on Capitol Hill. She was a staunch Republican who had worked for Representative Steve Scalise (R-LA), the second highest Republican in the House, and Senator Ted Cruz (R-TX). An aide to former House speaker Paul Ryan (R-WI), Brendan Buck, tweeted that “when Meadows was on the Hill he always insisted that she be in every meeting he had, no matter how small. It was odd then, and doesn’t seem to be working out for him now.”
Hutchinson testified that leaders in the Trump White House planned the attack on the Capitol. On January 2, 2021, Trump lawyer Rudy Giuliani met with Meadows and others in the White House, and as Hutchinson walked him to his vehicle, Giuliani asked her if she was excited about the sixth, saying, “We’re going to the Capitol! It’s going to be great!” When she asked Meadows what Giuliani meant, Meadows told her, “There’s a lot going on…things might get real, real bad on January 6.”
On January 4, National Security Advisor Robert O’Brien called Meadows to warn of violence on January 6. The Secret Service and White House Deputy Chief of Staff Anthony Ornato, who was in charge of security protocol to protect anyone covered by presidential protection, also warned of coming violence.
Hutchinson connected Trump to the insurrection attempt when she noted that on January 5, Trump told Meadows to contact Trump confidants Roger Stone and Michael Flynn, both of whom Trump had recently pardoned after they had been convicted of crimes, to talk about the next day. Hutchinson says Meadows did that. At the time, Stone was in Washington, D.C., where he was repeatedly photographed with members of the Oath Keepers who were acting as his bodyguards. A number of Oath Keepers have been charged with seditious conspiracy; at least two have pleaded guilty.
That night, Meadows wanted to go to the “War Room” that Giuliani, Trump lawyer John Eastman, and others had set up at the Willard Hotel, but he ultimately decided to call in rather than to go in person.
According to Hutchinson, by about 8:00 on the morning of January 6, intelligence reports were already coming in that some of the people near the Ellipse, where Trump was to speak, were dressed in body armor and armed with Glock-style pistols, shotguns, and AR-15s, along with other weapons. At 10:00, Hutchinson, Ornato, and Meadows talked of the weapons, but Meadows brushed it off, asking only if they had told Trump, which they had.
That made Hutchinson’s next revelation seismic. Text messages between Hutchinson and Ornato show that Trump was “furious” before the Ellipse rally because he wanted photos to show the space full of people and it was not full because law enforcement was screening people for weapons before they could go in. Trump wanted the screening machines, called magnetometers, to be taken down. Hutchinson testified that Trump yelled, “They’re not here to hurt me. Take the F’ing mags away. Let my people in. They can march to the Capitol from here.”
Then, knowing that some of the people in the crowd were armed, Trump repeatedly urged them to “fight,” using language his lawyers had warned against.
Hutchinson testified that Trump was determined to go to the Capitol with the crowd despite the desperate efforts of White House Counsel Pat Cipollone to make sure it didn’t happen. Cipollone told Hutchinson that Trump’s appearance there would open the White House up to being charged with “every crime imaginable” because it would look like Trump was inciting a riot. Nonetheless, Trump was furious that Meadows had not been able to persuade the Secret Service to make it happen, so furious that Cassidy heard from others that when he found that the SUV in which he was riding would not take him to the Capitol, Trump had lunged at the agent refusing to take him there.
Hutchinson did not know what the plan was for Trump’s trip to the Capitol, but there was talk of an additional speech there, “before he went in. I know that there was a conversation about him going into the House chamber at one point,” she said. The president is only supposed to go into the House chamber when specifically invited, so perhaps he expected to be invited in, or perhaps he was going in without an invitation, or perhaps those talking about it were just tossing out unworkable ideas.
Back at the White House, as the rioters breached the Capitol, Hutchinson went into Meadows’s office between 2:00 and 2:05 to ask if he was watching the scene unfold on his television. Scrolling through his phone, he answered that he was. She asked if he had talked to Trump. He said, “Yeah. He wants to be alone right now.” Cipollone burst into the office and said to go get the president. Meadows repeated that Trump didn’t want to do anything. Cipollone "very clearly said this to Mark—something to the effect of, ‘Mark, something needs to be done or people are going to die and the blood’s going to be on your f-ing hands. This is getting out of control.’”
When the rioters began to chant, “Hang Mike Pence,” Cipollone tried again to get Trump to stop the rioters, and Meadows again said, “You heard it, Pat. He thinks Pence deserves it. He doesn’t think they’re doing anything wrong.” Then, rather than calming the crowd as it threatened the vice president, at 2:24, Trump put out the tweet further blaming Pence for letting him down.
By 3:00, White House personnel, Ivanka Trump, and various members of Congress were begging Trump to release a statement telling the rioters to go home, making it clear they all knew he could make the violence stop if only he wanted to. But he didn’t want to. Not until 4:17, after Biden had already made a statement, did he speak up. Trump told the rioters to go home and that “we love you.”
The next day, as Cabinet officers talked of invoking the 25th Amendment to the Constitution and removing Trump from office, advisors convinced Trump to make a video. Even then, he refused to say that the rioters should be prosecuted—instead, he wanted to talk of pardoning them—and refused to say that the election was over.
In the aftermath of the insurrection, both Meadows and Giuliani asked for a presidential pardon.
What emerged from today’s explosive hearing was the story of a president and his close advisors who planned a coup, sent an armed mob to the Capitol, approved of calls to murder the vice president, and had to be forced to call the mob off. Two of the president’s closest advisors then asked for a presidential pardon. While they did not get those pardons, Trump’s PAC later gave $1 million to Meadows’s Conservative Partnership Institute.
That, right there, is enough to make today stunning. But there was more.
Hutchinson described an angry and violent man who threw plates at the walls when he was frustrated.
The committee revealed that when it interviewed Michael Flynn, he took the Fifth on whether violence on January 6th was justified either legally or morally. He also took the Fifth on whether he believed in the peaceful transition of power in the U.S.
Vice-chair Liz Cheney (R-WY) revealed at the end of the hearing that witnesses said they had been pressured by Trump’s people to remain “loyal” when testifying, and having just tipped their hand about just how much information the committee has, Thompson urged those witnesses to come back and revise their testimony. He urged others to come forward as well—perhaps a nudge to Cipollone, who has been portrayed positively in the hearings, both today and in the hearing covering Trump’s attempt to install Jeffrey Clark as acting attorney general, when Cipollone stood against that corruption.
CNN journalist Jake Tapper concluded: “It was devastating testimony, a portrait of a president who was completely and utterly out of control and, without question, knew of the danger of his supporters that were going to the mall…. This was obscene.”
It was. And yet no one in the White House either spoke up to warn us before January 6 or testified at Trump’s second impeachment trial, where he was charged with incitement of insurrection and, thanks to Republican senators, acquitted.
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Just a quick note the Roger Stone and Michael Flynn were pardoned prior to Jan.6. Pardons only are valid for crimes committed up the the time the pardon is issued. They can be prosecuted for any activities related to the insurrection.
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June 29, 2022 (Wednesday)
Today, the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol subpoenaed former White House counsel Pasquale “Pat” Cipollone. The lawyer, who is now in private practice, spoke to the committee on April 13 but has not talked with the members on the record.
In a statement, committee chair Bennie Thompson (D-MS) and vice chair Liz Cheney (R-WY) noted that Cipollone’s name has come up repeatedly in the hearings as having “legal and other concerns about President Trump’s activities on January 6th and in the days that preceded.” Testimony has said Cipollone stood with then–acting attorney general Jeffrey Rosen to stop Trump from installing Jeffrey Clark in that spot to lie to the American people that the 2020 election was fraudulent; he also came up frequently in yesterday’s testimony as trying—and failing—to keep Trump from breaking the law on January 6.
Thompson and Cheney wrote that they appreciated Cipollone’s previous cooperation but that the committee needs to hear from him “on the record, as other former White House counsels have done in other congressional investigations.”
There is no doubt that Cipollone holds powerful information about what happened in the White House during that crucial time, and his testimony likely could put people in jail.
Former federal prosecutor and co-host of the Sisters In Law podcast Joyce White Vance tweeted: “No reason Cipollone shouldn’t show up. He can always object to questions that would elicit legitimately privileged information. But at this point, who are you going to protect—the former president or the Republic?”
That seems to be a question a lot of people, including those on the right, are asking after hearing yesterday’s testimony by Cassidy Hutchinson, an aide to former White House chief of staff Mark Meadows.
In the National Review, Andrew C. McCarthy called Hutchinson’s testimony “devastating” and said, “Things will not be the same after this.” In an editorial, the Washington Examiner wrote, “Former White House aide Cassidy Hutchinson’s Tuesday testimony ought to ring the death knell for former President Donald Trump’s political career. Trump is unfit to be anywhere near power ever again…. Trump is a disgrace.” In The Dispatch, David French reviewed Hutchinson’s testimony and concluded that “the case for prosecuting Donald Trump just got much stronger.”
At the Reagan Presidential Library tonight, Cheney warned: “[W]e are confronting a domestic threat that we have never faced before—and that is a former president who is attempting to unravel the foundations of our constitutional republic, and he is aided by Republican leaders and elected officials who have made themselves willing hostages to this dangerous and irrational man.”
"Donald Trump attempted to overturn the presidential election. He attempted to stay in office and to prevent the peaceful transfer of presidential power. He summoned a mob to Washington, He knew they were armed on January 6th. He knew they were angry. And he directed the violent mob to march on the Capitol in order to delay or prevent completely the counting of electoral votes. He attempted to go there with them. And when the violence was underway, he refused to take action to tell the rioters to leave. Instead, he incited further violence by tweeting that the vice president, Mike Pence, was a coward. He said ‘Mike deserves it,’ and he didn’t want to do anything in response to the ‘Hang Mike Pence’ chants. It’s undeniable. It’s also painful for Republicans to accept.”
She concluded: “The reality that we face today as Republicans, as we think about the choice in front of us, we have to choose because Republicans cannot both be loyal to Donald Trump and loyal to the Constitution."
The audience broke out in applause.
On CNN this evening, committee member Zoe Lofgren (D-CA) talked to host Anderson Cooper about witness tampering. The committee is concerned, she said, that Trump is using the hundreds of millions of dollars he raised by promising small donors he would fight the election results to pay the legal bills of those witnesses with whom he plotted. She suggested that there was “coercion” involved with that money. Witness tampering is a crime, she noted, and she said the committee is “perfectly prepared to provide any evidence we have to the proper authorities.”
In related news, yesterday Virginia “Ginni” Thomas’s lawyer walked back her offer to testify to the January 6th committee about her role in the January 6 insurrection. Thomas has appeared in evidence the committee has collected: she texted Meadows before January 6 to call his attention to conspiracy theories about the election, wrote to Arizona lawmakers to urge them to create a new slate of electors that backed Trump rather than Biden, and communicated with lawyer John Eastman, the author of the memo detailing how then–vice president Mike Pence could overturn the election. She also attended the January 6 rally.
Ginni Thomas is married to Supreme Court Justice Clarence Thomas, and Eastman told Pence’s top aide Greg Jacob that he thought Thomas would support Eastman’s theories. Justice Thomas has refused to recuse himself from matters before the court pertaining to the attempt to stop Biden’s election.
After news about the emails between Eastman and Thomas surfaced, the committee on June 16 invited Thomas to testify, and Thomas told the right-wing Daily Caller she was eager “to clear up misconceptions. I look forward to talking to them.”
Now her lawyer says he doesn’t see any reason for her to talk to the committee, saying her communications were largely boilerplate and unremarkable, simply forwarding writings by other people. He said he is worried about her testifying before a committee that intends “to continue the baseless harassment she has been subjected to since January 6.” He adds that “this has been a particularly stressful time” because of “the unprecedented assault on the conservative Supreme Court Justices and their families.”
Longtime readers of these letters will be interested to know that today U.S. District Judge J. Paul Oetken sentenced Ukrainian-born businessman Lev Parnas to a year and eight months in prison and fined him $2.3 million.
Parnas worked with Trump lawyer Rudy Giuliani in Ukraine to try to smear Hunter Biden and showed up frequently in Trump’s first impeachment, although the criminal case against Parnas did not rest on that. It centered on a fraudulent business he ran and on illegal contributions he made to U.S. politicians, including House Minority Leader Kevin McCarthy (R-CA).
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“this has been a particularly stressful time” because of “the unprecedented assault on the conservative Supreme Court Justices and their families.”
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This long-time reader likes the ending implication there. Watch your back, Kevin McCarthy.
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It is always an uncomfortable read, milliefink.
And always worth it.
Thank you.
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honestly, they don’t seem very loyal to the constitution - or the country - even without trump around. and since they’re getting all the regressive bs they want from the supreme court: they hardly need him anymore
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This. Cynically, it seems like they are saying “Thanks for handing us a regressive SCOTUS majority, now run along, Donnie. We don’t need you any more. The adult fascists are talking.”
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I think she misspelled co-conspirators.
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June 30, 2022 (Thursday)
Today at noon, Ketanji Brown Jackson was sworn in as the first Black female justice on the Supreme Court.
Before Justice Brown took her oath, the court also signaled the end of the federal government as we know it.
In the past, the Supreme Court has operated on the basis of “stare decisis,” which literally means “to stand by things decided.” The purpose of that principle is to make changes incrementally so the law stays consistent and evenly applied, which promotes social stability. On occasion, the court does break precedent, notably in 1954 with the Brown v. Board of Education of Topeka decision, which overturned the 1896 Plessy v. Ferguson decision that rubber stamped racial segregation. When that sort of a major change happens, both the court and elected officials work hard to explain that they are changing the law to make it more in line with our Constitution, and to move people along with that change.
With the Dobbs v. Jackson Women’s Health Organization decision of last Friday, the court simply tore up 49 years of law and history, ending federal recognition of a constitutional right Americans have enjoyed since 1973.
Today, the court’s decision in West Virginia v. Environmental Protection Agency reversed almost 100 years of jurisprudence by arguing that Congress cannot delegate authority on “major questions” to agencies in the executive branch. At stake were EPA regulations that would push fossil fuel producers toward clean energy in order to combat climate change. The vote was 6 to 3, along ideological lines. That the court agreed to hear the case despite the fact that the rules being challenged had been abandoned suggested they were determined to make a point.
That point was to hamstring federal regulation of business. The argument at the heart of this decision is called the “nondelegation doctrine,” which says that Congress, which constitutes the legislative branch of the government, cannot delegate legislative authority to the executive branch. Most of the regulatory bodies in our government are housed in the executive branch. So the nondelegation doctrine would hamstring the modern regulatory state.
To avoid this extreme conclusion, the majority on the court embraced the “major questions” doctrine, which Chief Justice Roberts used today for the first time in a majority opinion.
That doctrine says that Congress must not delegate “major” issues to an agency, saying that such major issues must be explicitly authorized by Congress. But the abuse of the Senate filibuster by Republican senators means that no such laws stand a hope of passing. So the Supreme Court has essentially stopped the federal government from responding as effectively as it must to climate change. And that will have international repercussions: the inability of the U.S. government to address the crisis means that other countries will likely fall behind as well. The decision will likely apply not just to the EPA, but to a whole host of business regulations.
As recently as 2001, the Supreme Court unanimously rejected the nondelegation argument in a decision written by Justice Antonin Scalia, who said the court must trust Congress to take care of its own power. But now it has become law.
In the dissent, written by Justice Elena Kagan, Justices Sonia Sotomayor, Stephen Breyer, and Kagan argued that Congress had, in fact, properly given authority to the EPA to act, recognizing that agencies need to be able to respond appropriately to new and big problems. “Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise.” She noted that “[t]he Clean Air Act was major legislation, designed to deal with a major public policy issue.” “This is not the Attorney General regulating medical care, or even the CDC regulating landlord-tenant relations. It is EPA (that’s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time. She concluded: “The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy.I cannot think of many things more frightening.”
Kagan’s dissent noted the hypocrisy of the Republican justices claiming to be originalists when they are, in fact, inventing new doctrines to achieve the ends they wish. “The current Court is textualist only when being so suits it,” she wrote. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.”
Senate minority leader Mitch McConnell (R-KY) applauded the ruling, saying it limited the power of “unelected, unaccountable bureaucrats.”
The court also said today that it will consider making even greater changes to our country. It will hear Moore v. Harper, a case about whether state legislatures alone have the power to set election rules even if their laws violate state constitutions.
The case comes from North Carolina, where the state supreme court rejected a dramatically partisan gerrymander. Republicans say that the state court cannot stop the legislature’s carving up of the state because of the “independent state legislatures doctrine.” This is a new idea, based on the clause in the U.S. Constitution providing that “[t]he times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Those adhering to the independent state legislature theory ignore the second part of that provision.
Those advancing the independent state legislature theory also point to another clause of the Constitution. It says: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
Until now, states have interpreted “legislatures” to mean the state’s general lawmaking processes, which include shared power and checks and balances among the three branches of state government. Now, a radical minority insists that a legislature is a legislature alone, unchecked by state courts or state constitutions that prohibit gerrymandering. This interpretation of the Constitution is radical and new. It caught on in 2015, when Republicans wanted to get rid of an independent redistricting commission in Arizona.
This doctrine is, of course, what Trump and his allies pushed for to keep him in power in 2020: Republican state legislatures throwing out the will of the people and sending electors for Trump to Congress rather than the Biden electors the majority voted for.
That doctrine would also give to state legislatures the power to control who can vote, and how and where they can do so. It would strip power from elections commissions and secretaries of state, and it would take from state courts the power to challenge gerrymandering or voter suppression. Republicans currently control 30 state legislatures, in large part thanks to the gerrymandering and voter suppression in place in a number of those states.
Revered conservative judge J. Michael Luttig has been trying for months to sound the alarm that this doctrine is a blueprint for Republicans to steal the 2024 election. In April, before the court agreed to take on the Moore v. Harper case, he wrote: “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.”
And yet in March, when the Supreme Court let the state supreme court’s decision against the radical map stay in place for 2022, justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh indicated they are open to the idea that state courts have no role in overseeing the rules for federal elections.
In the one term Trump’s three justices have been on the court, they have decimated the legal landscape under which we have lived for generations, slashing power from the federal government, where Congress represents the majority, and returning it to states, where a Republican minority can impose its will. Thanks to the skewing of our electoral system, those states are now poised to take control of our federal government permanently.
Almost exactly 35 years ago, when President Ronald Reagan nominated originalist Robert Bork for the Supreme Court, Senator Edward Kennedy (D-MA) recognized his legal theory for what it was: an unraveling of the modern United States.
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”
“America is a better and freer nation than Robert Bork thinks,” Kennedy said.
And yet, here we are.
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