| From | Michael Waldman, Brennan Center for Justice <[email protected]> |
| Subject | The Briefing: New Supreme Court revelations |
| Date | September 17, 2024 8:28 PM |
Links have been removed from this email. Learn more in the FAQ.
Links have been removed from this email. Learn more in the FAQ.
How SCOTUS became a MAGA court
[link removed]
Last spring, Justice Samuel Alito had drafted an opinion dropping federal charges against many of the January 6 insurrectionists who violently stormed the Capitol. The ruling in Fischer v. United States ruling had not yet been released. Then the New York Times published a startling story: Alito himself had flown the flag of insurrection at his home. (He briefly blamed it on his wife: “She is fond of flying flags.”) Days later, it was reported that he had flown such flags at his vacation home as well.
Awkward! Grounds for recusal? Time to rethink the ruling? Nah. Instead, Chief Justice John Roberts quietly took Alito’s embarrassing name off the opinion and slipped his own name onto it instead.
That is just one of the gobsmacking revelations from a story
[link removed]
by Jodi Kantor and Adam Liptak in the New York Times that appeared this weekend. The lurid news of the day quickly overwhelmed it — the gunman arrested outside Donald Trump’s golf course, the continued smear campaign by former President Trump and Sen. J.D. Vance against the Haitian immigrant community in a small city in Ohio, and more.
But we must not let these revelations fade from view. They paint a damning and indelible picture of how John Roberts, for all his vaunted “institutionalism” and piety about calling “balls and strikes,” steered the Court to shield Trump from accountability for his misdeeds.
Call me naïve. At the beginning of this year, I thought I had few illusions about the Court. I had just published a harshly critical book, The Supermajority. But I felt confident in asserting that the Court was a conservative Court, a Federalist Society Court, even a Republican Court — but not a MAGA Court. It had not yet shown an appetite for excusing Trump from the reach of the law.
So I, along with most legal observers, assumed that the justices would let Trump’s trial proceed. I thought there was a good chance it would be unanimous, that Roberts would work behind the scenes to ensure that the Court spoke with one voice on major issues of presidential power and constitutional law. That’s what other chief justices did, most notably Warren Burger in United States v. Nixon, the Watergate tapes case and the closest analogue to the Trump trial ruling.
After all, we all thought, Trump v. United States was legally easy. Indeed, the possibility of criminal charges was the stated reason why Republican senators did not vote to convict him of the January 6 charges in Trump’s second impeachment trial.
Many of us, too, sensed there was a deal afoot — a unanimous ruling that Trump could not be thrown off the ballot by one state under the Fourteenth Amendment and a principled ruling on the criminal trial.
Behind the velvet curtain of the Court, though, there was no deal. Roberts wrote a memo in February — before the Court had even announced that it would hear Trump’s appeal — declaring that the Court would give the former president a huge win. “I think it likely that we will view the separation of powers analysis differently” from the appeals court, he wrote. As Kantor and Liptak summarized, “In other words: grant Mr. Trump greater protection from prosecution.”
They detailed myriad other ways that Roberts steered rulings Trump’s way. He froze out Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. The ruling was sloppy and immunized vast areas of potential presidential wrongdoing. The Times noted that NYU Law professor Trevor Morrison had discovered that Roberts selectively edited a quote from a key earlier ruling to help Trump.
The resulting ruling tells future presidents that they can break the law, plainly and flagrantly. As long as they conspire with other government officials, it will be effectively immunized. (Order your White House counsel to pay hush money, as Richard Nixon did, not your campaign manager, and you’ll be off the hook.)
The opinion has widely and correctly been scorned as one of the worst in American history — a rip in the constitutional fabric. The Times’s tick-tock makes clear that this was not a baffling anomaly. Rather, it is the biggest, most visible, and perhaps most consequential in a series of actions taken by a corrupted Court. It follows Citizens United, Shelby County, and other rulings that systematically undid key democratic protections.
Throughout American history, overreach by the Supreme Court has provoked a response. Dred Scott did in the 1850s — it helped lead to a civil war. Reactionary rulings such as Lochner did in the early 20th century. Trump v. United States should join with the Dobbs abortion rights ruling to spur a similar backlash today.
We’ve argued for an 18-year term limit for Supreme Court justices, because nobody should have too much public power for too long. And we’ve urged a binding code of ethics, which would have forced Justices Alito and Clarence Thomas to step out of these key cases. These reforms are widely popular. Most recently, a Fox News poll this summer found that 78 percent support term limits.
The Court is a broken institution. It’s time to fix it. The latest revelations remind us that otherwise, the fix is in.
[link removed]
For decades, the Voting Rights Act of 1965 was a powerful shield against racial discrimination in voting. But the Supreme Court’s 2013 decision in Shelby County v. Holder seriously weakened its protections. Since then, states have passed a slew of restrictive voting laws, widening the gap in turnout between white and nonwhite voters. Our new video breaks down the damage done to the Voting Rights Act and why Congress needs to pass new legislation to restore its strength. WATCH NOW
[link removed]
Even as we await these crucial reforms, one thing Americans can do to strengthen our democracy is register to vote. Today is National Voter Registration Day — you can register or check your registration at vote.gov
[link removed]
.
National Money Flooding Arizona Races
In Arizona, as in other swing states, national money is pouring into congressional elections. A new Brennan Center analysis reveals that almost three-quarters of all congressional candidates in Arizona are relying on donors from outside their state or district to fund their campaigns. “The dominance of national money creates the risk that, once elected, officials are more responsive to wealthy national donors than the constituents they’re supposed to serve,” Eric Petry and Ian Vandewalker write. READ MORE
[link removed]
State Courts Defend Citizen Power
State supreme courts in Utah and Michigan recently issued landmark decisions upholding citizens’ right to change their laws through direct democracy. However, these decisions are now under threat: Utah’s legislature has proposed a measure to overturn the court’s ruling, and Michigan’s court could reverse course depending on an upcoming judicial election. These battles reflect a growing trend: “in several states across the country, legislatures and state officials are undermining direct democracy through a variety of tactics,” Alice Clapman writes in State Court Report. Read more
How to Regulate Judicial Elections
Spending on state judicial races has also soared and grown more secretive in recent years. Lack of transparency around this funding and weak recusal rules for state judges mean that voters are often left in the dark about how candidates’ potential conflicts of interest may skew their decision-making on the bench. A new Brennan Center report proposes model rules that state high courts can adopt to ensure that justice is not tainted by money. READ MORE
[link removed]
Coming Up
VIRTUAL EVENT: The Experts’ Guide to Free and Fair Elections
[link removed]
Thursday, September 19, 3–4 p.m. ET
Election workers are unsung heroes, working behind the scenes to ensure that our elections run smoothly and securely. Yet many people don’t fully grasp what their job entails, leaving room for election deniers to spread misinformation. This lack of understanding has fueled a disturbing rise in threats, intimidation, and abuse of election officials since 2020.
Join us for a live virtual event that will spotlight these essential but often overlooked professionals. The discussion will offer a unique opportunity to hear firsthand from the people who make our elections possible as they share their day-to-day challenges and the role that they play in protecting democracy. RSVP today
[link removed]
VIRTUAL EVENT: What to Expect from the Supreme Court Term
[link removed]
Wednesday, September 25, 2–3 p.m. ET
On October 7, the Supreme Court begins its 2024–25 term — the fourth in which it is dominated by a supermajority of conservative justices. Among the questions on the docket: whether ghost guns are subject to regulation, whether prosecutorial misconduct invalidates a death sentence, the power of federal agencies to protect waterways, the applicability of criminal sentence reduction laws, and access to gender-affirming medical care. Experts will explore where the Court stands as it begins hearing cases again and discuss what can be done to shore up democracy. RSVP today
[link removed]
Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.
[link removed]
News
Emile Ayoub on privacy concerns around car surveillance // BLOOMBERG LAW
[link removed]
Alice Clapman on the myth of noncitizen voting // TALKING POINTS MEMO
[link removed]
Ian Vandewalker on the changing campaign finance landscape // WGCU
[link removed]
Sean Morales-Doyle on the harms of requiring proof of citizenship to vote // CCP NEWS
[link removed]
Feedback on this newsletter? Email us at [email protected]
mailto:[email protected]
[link removed]
Brennan Center for Justice at NYU School of Law
120 Broadway, Suite 1750 New York, NY 10271
646-292-8310
tel:646-292-8310
[email protected]
mailto:[email protected]
Support Brennan Center
[link removed]
View Online
[link removed]
Want to change how you receive these emails or unsubscribe? Click here
[link removed]
to update your preferences.
[link removed]
[link removed]
[link removed]
[link removed]
[link removed]
[link removed]
[link removed]
[link removed]
Last spring, Justice Samuel Alito had drafted an opinion dropping federal charges against many of the January 6 insurrectionists who violently stormed the Capitol. The ruling in Fischer v. United States ruling had not yet been released. Then the New York Times published a startling story: Alito himself had flown the flag of insurrection at his home. (He briefly blamed it on his wife: “She is fond of flying flags.”) Days later, it was reported that he had flown such flags at his vacation home as well.
Awkward! Grounds for recusal? Time to rethink the ruling? Nah. Instead, Chief Justice John Roberts quietly took Alito’s embarrassing name off the opinion and slipped his own name onto it instead.
That is just one of the gobsmacking revelations from a story
[link removed]
by Jodi Kantor and Adam Liptak in the New York Times that appeared this weekend. The lurid news of the day quickly overwhelmed it — the gunman arrested outside Donald Trump’s golf course, the continued smear campaign by former President Trump and Sen. J.D. Vance against the Haitian immigrant community in a small city in Ohio, and more.
But we must not let these revelations fade from view. They paint a damning and indelible picture of how John Roberts, for all his vaunted “institutionalism” and piety about calling “balls and strikes,” steered the Court to shield Trump from accountability for his misdeeds.
Call me naïve. At the beginning of this year, I thought I had few illusions about the Court. I had just published a harshly critical book, The Supermajority. But I felt confident in asserting that the Court was a conservative Court, a Federalist Society Court, even a Republican Court — but not a MAGA Court. It had not yet shown an appetite for excusing Trump from the reach of the law.
So I, along with most legal observers, assumed that the justices would let Trump’s trial proceed. I thought there was a good chance it would be unanimous, that Roberts would work behind the scenes to ensure that the Court spoke with one voice on major issues of presidential power and constitutional law. That’s what other chief justices did, most notably Warren Burger in United States v. Nixon, the Watergate tapes case and the closest analogue to the Trump trial ruling.
After all, we all thought, Trump v. United States was legally easy. Indeed, the possibility of criminal charges was the stated reason why Republican senators did not vote to convict him of the January 6 charges in Trump’s second impeachment trial.
Many of us, too, sensed there was a deal afoot — a unanimous ruling that Trump could not be thrown off the ballot by one state under the Fourteenth Amendment and a principled ruling on the criminal trial.
Behind the velvet curtain of the Court, though, there was no deal. Roberts wrote a memo in February — before the Court had even announced that it would hear Trump’s appeal — declaring that the Court would give the former president a huge win. “I think it likely that we will view the separation of powers analysis differently” from the appeals court, he wrote. As Kantor and Liptak summarized, “In other words: grant Mr. Trump greater protection from prosecution.”
They detailed myriad other ways that Roberts steered rulings Trump’s way. He froze out Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. The ruling was sloppy and immunized vast areas of potential presidential wrongdoing. The Times noted that NYU Law professor Trevor Morrison had discovered that Roberts selectively edited a quote from a key earlier ruling to help Trump.
The resulting ruling tells future presidents that they can break the law, plainly and flagrantly. As long as they conspire with other government officials, it will be effectively immunized. (Order your White House counsel to pay hush money, as Richard Nixon did, not your campaign manager, and you’ll be off the hook.)
The opinion has widely and correctly been scorned as one of the worst in American history — a rip in the constitutional fabric. The Times’s tick-tock makes clear that this was not a baffling anomaly. Rather, it is the biggest, most visible, and perhaps most consequential in a series of actions taken by a corrupted Court. It follows Citizens United, Shelby County, and other rulings that systematically undid key democratic protections.
Throughout American history, overreach by the Supreme Court has provoked a response. Dred Scott did in the 1850s — it helped lead to a civil war. Reactionary rulings such as Lochner did in the early 20th century. Trump v. United States should join with the Dobbs abortion rights ruling to spur a similar backlash today.
We’ve argued for an 18-year term limit for Supreme Court justices, because nobody should have too much public power for too long. And we’ve urged a binding code of ethics, which would have forced Justices Alito and Clarence Thomas to step out of these key cases. These reforms are widely popular. Most recently, a Fox News poll this summer found that 78 percent support term limits.
The Court is a broken institution. It’s time to fix it. The latest revelations remind us that otherwise, the fix is in.
[link removed]
For decades, the Voting Rights Act of 1965 was a powerful shield against racial discrimination in voting. But the Supreme Court’s 2013 decision in Shelby County v. Holder seriously weakened its protections. Since then, states have passed a slew of restrictive voting laws, widening the gap in turnout between white and nonwhite voters. Our new video breaks down the damage done to the Voting Rights Act and why Congress needs to pass new legislation to restore its strength. WATCH NOW
[link removed]
Even as we await these crucial reforms, one thing Americans can do to strengthen our democracy is register to vote. Today is National Voter Registration Day — you can register or check your registration at vote.gov
[link removed]
.
National Money Flooding Arizona Races
In Arizona, as in other swing states, national money is pouring into congressional elections. A new Brennan Center analysis reveals that almost three-quarters of all congressional candidates in Arizona are relying on donors from outside their state or district to fund their campaigns. “The dominance of national money creates the risk that, once elected, officials are more responsive to wealthy national donors than the constituents they’re supposed to serve,” Eric Petry and Ian Vandewalker write. READ MORE
[link removed]
State Courts Defend Citizen Power
State supreme courts in Utah and Michigan recently issued landmark decisions upholding citizens’ right to change their laws through direct democracy. However, these decisions are now under threat: Utah’s legislature has proposed a measure to overturn the court’s ruling, and Michigan’s court could reverse course depending on an upcoming judicial election. These battles reflect a growing trend: “in several states across the country, legislatures and state officials are undermining direct democracy through a variety of tactics,” Alice Clapman writes in State Court Report. Read more
How to Regulate Judicial Elections
Spending on state judicial races has also soared and grown more secretive in recent years. Lack of transparency around this funding and weak recusal rules for state judges mean that voters are often left in the dark about how candidates’ potential conflicts of interest may skew their decision-making on the bench. A new Brennan Center report proposes model rules that state high courts can adopt to ensure that justice is not tainted by money. READ MORE
[link removed]
Coming Up
VIRTUAL EVENT: The Experts’ Guide to Free and Fair Elections
[link removed]
Thursday, September 19, 3–4 p.m. ET
Election workers are unsung heroes, working behind the scenes to ensure that our elections run smoothly and securely. Yet many people don’t fully grasp what their job entails, leaving room for election deniers to spread misinformation. This lack of understanding has fueled a disturbing rise in threats, intimidation, and abuse of election officials since 2020.
Join us for a live virtual event that will spotlight these essential but often overlooked professionals. The discussion will offer a unique opportunity to hear firsthand from the people who make our elections possible as they share their day-to-day challenges and the role that they play in protecting democracy. RSVP today
[link removed]
VIRTUAL EVENT: What to Expect from the Supreme Court Term
[link removed]
Wednesday, September 25, 2–3 p.m. ET
On October 7, the Supreme Court begins its 2024–25 term — the fourth in which it is dominated by a supermajority of conservative justices. Among the questions on the docket: whether ghost guns are subject to regulation, whether prosecutorial misconduct invalidates a death sentence, the power of federal agencies to protect waterways, the applicability of criminal sentence reduction laws, and access to gender-affirming medical care. Experts will explore where the Court stands as it begins hearing cases again and discuss what can be done to shore up democracy. RSVP today
[link removed]
Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.
[link removed]
News
Emile Ayoub on privacy concerns around car surveillance // BLOOMBERG LAW
[link removed]
Alice Clapman on the myth of noncitizen voting // TALKING POINTS MEMO
[link removed]
Ian Vandewalker on the changing campaign finance landscape // WGCU
[link removed]
Sean Morales-Doyle on the harms of requiring proof of citizenship to vote // CCP NEWS
[link removed]
Feedback on this newsletter? Email us at [email protected]
mailto:[email protected]
[link removed]
Brennan Center for Justice at NYU School of Law
120 Broadway, Suite 1750 New York, NY 10271
646-292-8310
tel:646-292-8310
[email protected]
mailto:[email protected]
Support Brennan Center
[link removed]
View Online
[link removed]
Want to change how you receive these emails or unsubscribe? Click here
[link removed]
to update your preferences.
[link removed]
[link removed]
[link removed]
[link removed]
[link removed]
[link removed]
[link removed]
Message Analysis
- Sender: Brennan Center for Justice
- Political Party: n/a
- Country: United States
- State/Locality: n/a
- Office: n/a
-
Email Providers:
- Litmus