Tag: samuel alito
The Supreme Court's 'Immunity Club' And The Advent Of Fascist Jurisprudence

The Supreme Court's 'Immunity Club' And The Advent Of Fascist Jurisprudence

I just watched a full hour of some very, very smart legal eagles analyzing what it means that the Supreme Court has decided to hear Donald Trump’s immunity appeal. Six experts were interviewed by Nicole Wallace on MSNBC. She’s good. Every one of the experts was good. The whole show did an excellent job of running through all the permutations and combinations of what it could mean that the Supreme Court will hear oral arguments of the Trump appeal on April 22, and what that could mean in terms of when they might issue a decision, and what that would mean about when the case before Judge Tanya Chutkan might come to trial.

I don’t care how you cut it, this is the terrifying result you get when you elect a raving fascist lunatic like Donald Trump and he gets the opportunity – aided and abetted by right wing puppets in the Senate and their right-wing corporate puppeteers – to appoint a gaggle of starry-eyed authoritarian moonies to the highest court in the land. It takes only four justices for the Supreme Court to agree to hear a case. We learned today that four of the justices who went through the authoritarian training camp run by the Federalist Society, which is backed by a small group of fascist billionaires, got together and decided to hear Trump’s case, which makes the absurdly authoritarian claim that he, and he alone, is above the law.

Justice Clarence Thomas, whose wife participated in Trump’s conspiracy to overturn the 2020 election, has been supported monetarily by one of the right-wing billionaires that funds the Federalist Society. Although the court didn’t announce the names of the justices who voted to take the Trump case, it is a certainty that Thomas was one of them. The other three are no better, because all six of the Republican appointed justices attend Federalist Society private functions, they give speeches to Federalist Society gatherings, they hire clerks approved by the Federalist Society.

It's almost like it wasn’t the Supreme Court, it was the fucking Federalist Society that voted today to hear Donald Trump’s appeal.

The details of the arguments the court will hear in April are almost too depressing to go through. Trump’s lawyers told the D.C. Court of Appeals that his claim of immunity would cover him if while president, he had ordered Seal Team Six to assassinate a political opponent, because that would have amounted to an “official act,” and thus it would come under his immunity from prosecution. If that isn’t enough for you, Trump’s lawyers told both the D.C. Court of Appeals and the Supreme Court that anything Trump did to overturn the election, such as interfering with the counting and certification of electoral ballots, would fall under his claim of immunity, because what he did was an official act.

In fact, at least two of the legal experts on MSNBC this afternoon said the argument before the Supreme Court in April will come down to the court deciding what is an official act, and what isn’t.

The same Donald Trump who is claiming absolute immunity for anything he did as president is yapping at his campaign rallies that the first thing he will do if they elect him president is prosecute Joe Biden for pretty much everything he has done as president since the day he took office, even though unlike Trump, he has been charged with no crimes.

Do you think that incredibly obvious contradiction – that Trump has immunity, but Biden doesn’t -- will be argued at the Supreme Court on April 22? Do you think it will even be mentioned?

Not at the Supreme Court immunity club, it won’t

One of Clarence Thomas’ close friends bribed him with a “loan” of about $250,000 to buy a luxury motor home. The “loan” was never paid back. Another of his close friends, Harlan Crow, bribed Thomas by buying his mother’s house, renovating it, and then allowing her to continue living in it rent-free. Thomas never paid a dime of taxes on what was, on its face, a gift from Crow.

Clarence Thomas has been allowed to live a life of bribery and corruption. But nothing has been done to him because the lack of a Supreme Court code of ethics makes him effectively immune from prosecution.

How do you think he will vote after the Trump immunity case is heard on April 22? How about Brett Kavanaugh, who got away with sexually harassing a young woman while he was in high school and then perjured himself about it before the Senate? He’s in the immunity club. How do you figure he’ll vote?

How about Justice Samuel Alito, who flew for free on a billionaire’s private jet and stayed in a $1000-a-night luxury fishing lodge and whooped it up with his billionaire benefactor and his billionaire pals and drank their expensive liquor and then flew home on the private jet – all without spending even a dime of his own money to pay for his luxury vacation? He’s a paid-up member of the immunity club. Got any guesses how he’ll vote?

Amy Comey Barrett hasn’t taken any billionaire bucks that we’ve heard about, but she doesn’t need to, because her immunity comes from the same place her instructions do – from God himself. Amy believes the United States is a “Christian nation,” and wishes fervently that its laws adhered to the laws of the Bible, which of course immunizes all kinds of people from punishment for all sorts of things. Hers is an immunity club membership with a special dispensation. She’ll just follow God’s will. That’s immunity enough.

There are four votes to hear the Trump appeal.

All they need is one more. And even if they don’t end up endorsing Trump’s arguments that he can commit murder and get away with it, and all this other stuff is just chicken feed, all they’ve got to do is dick around deciding the case until the end of their term on July 1, and that alone will make it nearly impossible for Judge Chutkan to start the Trump trial before October 1, and what do you know, but that’s within the DOJ window before an election when no prosecutions or investigations of a candidate for election can begin.

Is the fix in? Not completely, but it’s just terrifying how close we’re getting to having a country run by a small club of billionaire fascists who of course are all paid-in-full members of the same immunity club their paid-for Supreme Court justices are members of.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Please consider subscribing to Lucian Truscott Newsletter, from which this is reprinted with permission.

Will Supreme Court's Right-Wing Justices Deprive Prisoners Of Health Care?

Will Supreme Court's Right-Wing Justices Deprive Prisoners Of Health Care?

Admittedly, the high-shine concrete molding that lined the walls and met the floors overly waxed by inmates in the commercial cleaning program lost some of its luster, but workers at Osborn Correctional Institution in Somers, Connecticut were shifting. Only the ones who were deemed essential were going to work in the coming days.

It was March 2020 and an infectious pandemic was on its way inside. Only those men who fed the inmates or whose work could help slow the spread of this novel disease would be working soon: kitchen workers, some cleaners, and the men who ran the laundry and washed the sheets and blankets the men used on their bunks.

Above that dulled concrete, on an aluminum tabletop, rested the shoes of Captain Daniel Perez who was announcing the plan. Osborn’s Deputy Warden Nicole Thibeault stood by him as he explained. Laundry workers would move from E-Block to H-Block, a move no more than 100 yards but still worlds away now that the SARS-CoV-2 virus traveled among men. In E-Block, the laundry workers could shelter and essentially quarantine from each other in their single cells with bolted doors. But in H-Block, the cells were constructed of bars with inches of space between them, open invitations for the new coronavirus to travel.


“Any questions? Thibeault asked after Perez finished his explanation.

Inmate Barry Guess piped up.

Yes. My name is Barry Guess. I got a question. If I'm already in a single cell setting — no cellie, no possible way to have someone giving me COVID — why move me to a block that's open with a cell that's open, where I can possibly be given COVID or infected?"

Thibeault provided perfunctory answers but warned that if people refused they face disciplinary action and the loss of their single, ostensibly safeguarded cell anyway.

No Personal Protective Equipment (PPE) was provided to the laundry workers; they made masks themselves. As a result, all except one laundry worker contracted COVID — and that one exception wasn’t un-infected. He simply wasn’t tested. The first inmate to die of COVID-19 in Connecticut was a laundry worker at Osborn. Neither Thibault nor Perez let the other workers know that “Doc” — as the other inmates called him — had passed.

Eventually, the Department of Correction transferred the men to Northern Correctional Institution, the state’s death row when the death penalty was still in effect, but the laundry workers weren’t allowed to bathe for thirteen days — because administrators said they feared COVID would be caught in shower mist and spread.

Christoper Nazario, a laundry worker who suffered a heart attack because of his COVID infection and who has since been released, sued Thibeault, arguing that she and the State of Connecticut exposed him and the other laundry workers to an unreasonable risk of serious damage to their health and, in so doing, violated the Eighth Amendment prohibition on cruel and unusual punishment. Seven other laundry workers, including Guess, followed with their own claims. The district court in Connecticut united all eight plaintiffs into one case because their complaint was the same: the Department of Corrections intentionally disregarded their health.


Thibeault responded by moving for summary judgment, arguing that there was no dispute that required a trial. According to Thibeault’s attorneys, the attorneys general for the State of Connecticut, corraling people together so they could contract COVID and die was never cruel nor unusual punishment and even if it were, Thibeault and other state employees can’t be held accountable for it because they work for a government agency.


Last June, United States District Court Judge Vanessa L. Bryant denied Thibeault’s motion for summary judgment, an order that means one thing legally — that the facts and the law are in dispute and need to be resolved through a trial — and another thing factually. Bryant’s decision means that moving prisoners into areas that increased the likelihood that they would contract COVID might be cruel and unusual punishment, that those moves might have been what the courts call deliberate indifference, and that Thibault’s position that prisons and jails can’t be held accountable for these administrative choices isn’t necessarily correct. Bryant’s decision means that the law and standards for care may change with Nazario’s case.


Bryant’s decision wasn’t good news for Thibeault. Unless the state settled the case, a trial would ensue. Witnessed would testify. he state’s COVID response would be on public display. Thirty inmates died of COVID in Connecticut prisons before July 2022 when the state stopped publicly reporting the deaths. It sounds like it isn’t many. With the state’s entire population at its lowest at 8945 in June 2021, 30 deaths create a death rate of three-tenths of a percent. By comparison, a little over one-tenth of a percent of the United States population died of COVID-19. The Connecticut inmate rate of death is twice that.


About a month later, on July 29, 2022, Thibeault filed an interlocutory appeal — an appeal that happens before a case is over — to keep the case from proceeding to trial. Lawyers argued that interlocutory appeal before the Second Circuit Court of Appeals last week in New York and, depending on the outcome in a few months, one side or the other will appeal to the Supreme Court of the United States. And what’s worse is that the nation’s highest court may take it.


Traditionally, the problem of lack of health care, substandard care, or conditions that endanger health was cured by the courts. A 1976 Supreme Court case, Estelle v. Gamble, established the law that the Eighth Amendment requires prisons and jails to provide adequate medical care to people in their custody. Through this decision, Inmates are the only population in the country who have a constitutional right to healthcare.


While litigating claims of health is far from ideal — it’s not fast so there’s really no way to compel correction officials to provide emergency care — it has worked in the past. For example, Santa Clara County, California has faced litigation several times and paid out large settlements. The county has made significant improvements to how it provides medical care to its wards and is now considered an example of quality correctional care.


But litigation’s power to address failures in correctional health care may soon change. Given the current Supreme Court’s willingness to overturn established precedent as evidenced by its complete reversal on Roe v. Wade last year in the Dobbs v. Jackson Women’s Health Center decision — an opinion authored by Justice Samuel Alito — there’s reason to fear that the nation’s highest court may be looking to overturn the precedent established in Estelle v. Gamble once the right case reaches their docket.


The chances that the parties won’t at least knock on the door at the Supreme Court is zero; either the laundry workers or Thibeault will lose at the Second Circuit Court of Appeals and whoever does will try to get the nine justices to side with them before they head back to a New Haven courtroom.

Lynn Hamlet already beat the laundry workers to the Supreme Court on these issues. Hamlet, an elderly man incarcerated at Florida’s Martin Correctional Institution, is diabetic and had a cut on his ankle. He was forced by a correction officer into a shower that had backed up with another inmate’s feces. The guard, Brandon Hoxie, didn’t allow Hamlet any cleaning materials to wash his wound and denied him access to the showers. Hamlet developed an infection that eventually caused him to need emergency surgery on his heart.


Unlike Nazario and Guess’ case, the lower courts in Hamlet’s case held that it was a foregone conclusion that the deputy warden was immune from suit and that it was acceptable to ignore inmate health concerns.


The difference in holdings is a problem. Hamlet’s case is out of the Eleventh Judicial Circuit. Nazario’s case is in the Second Circuit, which means inmate healthcare and qualified immunity for the officials who are deliberately indifferent to an inmate’s needs has become a constitutional issue on which federal circuit courts are split. The Supreme Court likes curing those fissures. It’s cause for them to accept the case, especially if they’re anxious to toy with precedent they don’t like.


The justice who’s shown the most disdain for the right to be free from cruel and unusual punishment is Alito himself, author of the Dobbs opinion. He proved it ten years earlier in his dissent in the case Miller v. Alabama. Alito’s 2012 departure from the majority’s view was that mandatory life-without-parole sentences for youthful offenders shouldn’t be unconstitutional.


Alito didn’t hold back, writing: “[t]he Court long ago abandoned the original meaning of the Eighth Amendment…” Alito quarrels with the idea that what constitutes cruel and unusual punishment should be tied to “evolving standards of decency.” In 2015, in the case of Glossip v. Gross, Alito argued that excruciating pain inflicted from botched injections isn’t inhumane because death itself is inhumane.

Given that the climbing cases are setting up a perfect showdown on Eighth Amendment jurisprudence, it’s entirely possible that the Court will soon gut and overturn Estelle v. Gamble, giving prisoners little to no grounds for relief in the courts when they are denied medical care or abused in ways that compromise their health.


The remedy for any change in precedent may lie in an experimental program that mostly has to do with care when a prisoner is freed.


In January 2023, the Centers for Medicare and Medicaid Services (CMS) approved the first waiver to the Medicaid Inmate Exception Policy (MIEP) in the Social Security Act. The waivers, granted under the Medicaid Reentry Section 1115 Demonstration Opportunity, allow prisons and jails to enroll people who are due to leave custody in the next 90 days in Medicaid and also provide substance abuse treatment while they’re still incarcerated.


Because approximately 80 percent of people leaving prisons and jails have chronic medical, psychiatric, or substance use disorder problems, experts agree that these waivers have the potential to improve the health of people reentering society and prevent them from relapsing or re-offending.
At first glance, it doesn’t appear that such a waiver would have done any good for the laundry workers or Hamlet but that’s a misperception. The irony of inmates being the only population to have constitutionally guaranteed healthcare is that they’re also the only population for whom there isn't a universal, mandatory standard of medical care.


The National Commission on Correctional Health Care (NCCHC) issues standards for care for confined people but compliance with them is voluntary. Malpractice, as it were, doesn’t exist in these facilities, and not because medical care is optimal. Malpractice is a dereliction of professional duty or a failure to exercise an ordinary degree of professional skill; as a practical matter there’s no duty to inmates and the ordinary degree of professional skill can be so low that any care provided meets or beats it. Inmates who are harmed must argue that their civil rights were violated to access the courts; suing for malpractice in tort is next to futile.


Once a waiver is approved for a state and is implemented, the standard of care for jails and prisons becomes Medicaid’s standard of care, according to Dan Mistak, President and Director of Healthcare Initiatives for Justice-Involved Populations at Community Oriented Correctional Health Services, an organization that has long advocated for changes in the MIEP.


In the cases ascending the appellate ladder, the problem becomes less that the deputy warden moved the laundry workers and more that the providers needed to prevent Nazario’s COVID infection from affecting his cardiovascular system and ensure adequate protective gear. Instead of the problem being a guard leaving inmate Hamlet in a dirty and infectious shower, the problem becomes his wound and how it should have not developed in the first case with proper diabetes care. In short, prisoners won’t need to use the Constitution to protect their health because there will be new regulations in place, even if those regulations target those who are rejoining society.


The Medicaid Reentry Section 1115 Demonstration Opportunity waivers have been approved for two states so far: California and Washington; neither state has started their demonstration yet but the way these waivers will import oversight and standards to carceral spaces, they may end up preserving the health of more prisoners than intended.

This article was supported by a fellowship from the Commonwealth Fund through the Journalism and Women Symposium (JAWS).

Chandra Bozelko served more than six years in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent. Her work has earned several professional awards from the Society of Professional Journalists, the Los Angeles Press Club, The National Federation of Press Women and more.Her columns now appear regularly in The National Memo.

U.S. Supreme Court

Supreme Court's Approval Rating Drops To Lowest Level Ever

More than two years of highly unpopular decisions and months of exposés detailing scandals and alleged corruption has eroded the U.S. Supreme Court’s approval to its lowest level ever in the years in which Gallup has been tracking it. It dropped from 62 percent in 2000, the first year of the survey, to just 40 percent today. It had a 58 percent approval rating in 2020, before the death of Justice Ruth Bader Ginsberg and the installation of Donald Trump’s appointee, Amy Coney Barrett. It’s been mostly downhill for the court’s approval since.

The court has been on a spree of unprecedented and radical actions over the last two and a half years, reversing decades of court precedent on abortion, voting rights, civil rights, environmental protection, executive authority, labor law—you name it, up to and including the foundational principles of the Constitution. If the court could reverse a century’s worth of progress in some arena of our public and private lives, they’d do it. For the first year of Trump-appointee dominance on the court, they didn’t even bother to hold hearings on a lot of it. They just tore up decades of progress in the “emergency” or “shadow docket,” where they could do it anonymously and with absolutely no transparency.

Those actions clearly had an effect on the court’s approval rating. There was a brief blip of increased approval—up to 43% in 2022—that was erased this year by the onslaught of scandals and apparent corruption by Justices Clarence Thomas and Samuel Alito.

That includes extensive ProPublica reporting on Thomas: the luxurious vacations, the real estate deals including his mother living rent- and mortgage-free in her newly renovated home, and the private school tuition for Thomas’ nephew, all from Harlan Crow, a billionaire mega-donor to the Republican Party. That’s without even considering the involvement of Thomas’ wife, Ginni, in the January 6 insurrection.

Alito hasn’t escaped ProPublica’s investigative eye either. It reported on his private, luxurious, and all-expense-paid fishing trip in which he hung out with a hedge fund manager who has had business before the Supreme Court, cases he heard and ruled on. Other outlets have followed its lead. CNN has investigated Alito’s celebration of overturning abortion rights with his all-expenses paid trip to Rome. Alito’s efforts to slap back at those stories and declare, incorrectly, that he is beyond the reach of Congress aren’t likely to resonate with any neutral observer among the public.

The court isn’t elected, so what the people think of them isn’t of direct concern to the justices. However, the people who have the power to regulate the court are elected, and thus have every interest in dealing with the problem. So perhaps the justices shouldn’t be too smug about their untouchability.

If any of them (cough, Chief Justice John Roberts, cough) truly care about the institution, they’ll see the threat to it in the growing lack of confidence and trust in the court, particularly right now when the rule of law in the nation is on such precarious ground thanks to an insurrectionist former president.

That’s where Roberts might take note of this new result from Gallup because it surveyed his personal approval rating for the first time in eight years. His approval has been relatively flat for the last decade, and now he sits at 43 percent approval. What’s changed is the chunk of the population that is paying enough attention to the court, and to Roberts, to have an opinion about him. In 2015, 44 percent of respondents simply didn’t know enough about him to weigh in with an opinion. This month, that was down to 27 percent.

If you’re a chief justice of the Supreme Court, you don’t want your work to be rising to the level of general public scrutiny. You’re better off with the court not making so much news—particualrly bad news—that more people are paying attention. You really don’t want that ahead of an election year in which your court and its lack of ethics is going to be a key issue.

Reprinted with permission from Daily Kos.

Can The Supreme Court's Ratings Sink Lower? They Just Did

Can The Supreme Court's Ratings Sink Lower? They Just Did

The U.S. Supreme Court notched yet another all-time low in its approval rating, this time in a Quinnipiac University poll.

The survey found that a 54 percent majority of Americans disapprove of the way the Supreme Court is handling its job, while just 35% approve.

Registered voters expressed nearly the same level of discontent at 36 percent approval and 55 percent disapproval—the lowest job approval among registered voters in the survey since Quinnipiac began asking the question in 2004.

It's yet another new low for a court that has seen its reputation take an abrupt nosedive ever since it overturned a 50-year precedent on abortion rights this summer.

In June, Gallup found public confidence in the high court had sunk to just 25 percent, a historic all-time low since Gallup began tracking the measure in 1973. Confidence in the court stood at 45 percent in that May '73 survey, taken just months after the high court had established a constitutional right to abortion in its January ruling on Roe v. Wade.

Reprinted with permission from Daily Kos.