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How Samuel Alito Is Returning Jim Crow To The Supreme Court

In recent decades, voting rights progress has consisted of expanding access to a ballot and the ways to cast it—such as online registration, voting from home with mailed-out ballots and other options to vote before Election Day. Those innovations have been widely embraced, especially during the 2020 election in response to health concerns during a pandemic. In the general election, 56 million people voted in a different manner than they had in 2016.

But the Supreme Court's latest major decision on the Voting Rights Act of 1965 has imposed new standards that election law scholars say are hostile to the more expansive and convenient voting options that have surfaced in recent years. Even more troubling, the court's conservative majority has done so in a way that is reminiscent of the arguments put forth by last century's opponents of equal voting opportunities for racial minorities.

In Brnovich v. Democratic National Committee, the court eviscerated the strongest remaining section of the Voting Rights Act of 1965 (VRA), Section 2, which held that election laws and voting rules that had a racially discriminatory impact could be blocked. (In 2013, the court, in Shelby v. Holder, neutered the VRA's sections that allowed federal authorities to block regressive new election laws or voting rules in jurisdictions with histories of discrimination.) Perhaps most alarmingly in Brnovich, Justice Samuel Alito's majority opinion resurrected a legal strategy embraced by the opponents of last century's major civil rights reforms.

Brnovich held that some discriminatory impacts of an election law do not alone invalidate that law. That standard, put forth in "guideposts" laid out by Alito, means that suits challenging laws and rules that make voting harder must go beyond showing a discriminatory result. Those challenging a law must prove that its authors intended to discriminate—making it much harder to sue and win. Shifting the burden of proof from the result or effect of a law to its authors' intent was a tactic of 1970s anti-civil rights litigants.

But Brnovich went even further by also reviving the states' rights strategy cited by mid-20th-century segregationists. It held that state legislatures could cite an interest in policing voter fraud—which, factually, barely exists—as a pretext to pass stricter new election laws. And the ruling said that it didn't matter if a new law advantaged the party that authored the law.

"Effectively, most of the VRA is now dead," David Schultz, a Hamline University scholar specializing in elections and democracy, wrote in an email.

"The proof issue is critical," he continued. "[First, t]he court gives the benefit of the doubt to states that their laws are valid. Second, the court dismisses mere inconveniences as proof of creating less opportunity. It also dismisses small disparities as minor. And it also imposes a difficult burden on statistical evidence. Finally, even if someone can surmount all this, the court seems to dismiss some burdens by saying in the totality of the circumstances the overall voting system may be fine. In effect, despite the fact that voting is a fundamental constitutional right which is supposed to force the state to prove why its restrictions are valid, it shifts the burden to challengers with a near-impossible argument to make."

Other legal scholars have also written that Brnovich's dark implications are sinking in.

"[E]ach time I read Justice Samuel Alito's majority opinion in Brnovich v. Democratic National Committee, the angrier I become," Rick Hasen, a University of California, Irvine election law scholar, wrote on July 8 for Slate. "I'm angry not only about what the court did but also about how much of the public does not realize what a hit American democracy has taken."

Segregationist Revival

In strict terms, Hasen noted that the Brnovich ruling rolls back "the clock on voting rights to 1982," a date cited by Alito's majority opinion. That date is legally and politically significant. In fact, Brnovich cannot be seen as apolitical. As Schultz noted, "What makes this so bad is that the decision does not look neutral, and it makes the court look even more like a political institution where justices are simply partisan politicians with robes."

The early 1980s were the heyday of Ronald Reagan's presidency. At that time, both Alito and Chief Justice John Roberts held senior positions in the Justice Department, where the Reagan administration not only resisted enforcing federal voting rights law but also sought to weaken the same section of the VRA that is the focus of 2021's Brnovich decision. Today, few may recall that candidate Reagan gave a reactionary states' rights speech in August 1980 at the Neshoba County Fair in Mississippi—near where three civil rights workers were murdered in 1964. The murders were one of many events that propelled passage of the Voting Rights Act of 1965.

Southern states' rights advocates and their conservative descendants have long resisted broad voting rights—today, during Reagan's day, in the 1960s, and in the earlier Jim Crow era. Congress passed other civil rights laws by the late 1960s, such as in housing and employment. After the VRA's passage, its advocates' early focus was registering voters for 1968's presidential election and dealing with the legacy of exclusion.

Richard Nixon, who won that election, ran on a states' rights "Southern strategy" that conveyed his support for segregationist values. Once in office, Nixon appointed judges vetted by South Carolina's Republican Senator Strom Thurmond, a white supremacist, in exchange for his endorsement over segregationist Alabama Governor George Wallace, said Chris Sautter, an election lawyer and American University adjunct professor.

By the mid-1970s, Nixon had resigned. But the impact of his judicial appointments was being seen. In civil rights litigation outside the voting sphere, civil rights opponents and conservative judges chipped away at new civil rights laws by changing the burden of proof required by those suing to enforce those laws. The cudgel concerned altering the burden of proof from showing a law's discriminatory effect to proving discriminatory intent. In short, the prosecutorial burdens that Alito revived in Brnovich didn't come out of thin air but were used by segregationists in his formative years as a young Reagan administration lawyer.

By 1980, the reactionary push to alter the burden of proof in new civil rights laws reached the voting sphere. In City of Mobile v. Bolden, the Supreme Court held that Section 2 challenges required proving discriminatory intent—a ruling that contradicted the law's text. At that time, race-based electioneering was returning to GOP circles. In New Jersey's 1981 elections, the Republican National Committee used Jim Crow-like thuggish tactics to try to intimidate Black and Hispanic voters. The Democratic National Committee sued and won a now expired court order that restrained the RNC. (Election lawyers point to the RNC's tactics as foreshadowing the modern Republican Party's voter suppression playbook.)

Some of that backlash also was due to Jimmy Carter's presidency (1977-1981), Sautter said, which enforced another part of the VRA: its preclearance provisions. These sections required states and counties with histories of discriminatory elections to get federal approval before implementing any new election law or rule. (In 2013, the court, in Shelby v. Holder, a majority opinion written by Roberts, gutted the VRA's preclearance provisions.)

In 1982, the 97th Congress reacted to the Supreme Court's Mobile ruling by restoring Section 2's original burden of proof—those who sued only needed to show that a new law's effect was discriminatory. The VRA's 1982 amendments said that courts should consider the "totality of the circumstances" to protect voting rights. The Reagan administration opposed reviving the law's original standard, an effort led by Roberts, as Hasen noted in his recent Slate piece.

"Congress disagreed with the Supreme Court's [1980] interpretation of Section 2, and in 1982 Congress passed a revised Section 2. This revision came despite fierce opposition from the Reagan administration and the president's point person on the issue, John Roberts, who now happens to be the chief justice of the Supreme Court," Hasen writes. At that time, Alito worked in the solicitor general's office, arguing for the Reagan administration in federal court.

In Brnovich, Alito laid out five "guideposts" for courts to judge Section 2 claims, including the harder burden of proof.

"In truth, these are less guideposts and more roadblocks looking to stop plaintiffs at every turn when they assert their Section 2 claims," Hasen writes. "One of the guideposts specifically tells courts to compare the voting restrictions being challenged in a Section 2 case to the burdens of voting as they existed in 1982."

Back to 1982?

What does it mean when a big slice of voting rights law is rolled back to 1982? The first take by scholars like Hasen is that recent voting options—such as allowing early voting on Sundays to accommodate "souls to the polls" drives led by clergy—have little basis for federal protection.

"[I]magine a state passes a law barring early voting on the Sunday before Election Day, because white Republican legislators know that reliably Democratic Black voters often run 'souls to the polls' events to take church-going voters straight to vote after services," he writes. "While a challenge to such a rollback under Section 2 had a good chance of going forward before, how could it survive the 1982 benchmark now, when Sunday voting, and early voting as a whole, was rare?"

Consider the Texas legislature's current machinations to ban the expanded voting options that Harris County—home to Houston—implemented in 2020 to make voting more accessible in the pandemic, such as 24-hour voting centers and mailing out absentee ballot applications. These GOP-led reforms are unfolding despite the statewide victories in fall 2020 elections by Texas Republicans.

"States are [now] mostly free to do what they want with voting and there appears to be little federal remedies or help to protect voting rights," said Schultz. "More than a decade ago, I said we were in the middle of a Second Great Disenfranchisement in America (the first was after the Civil War Reconstruction ended). This decision [Brnovich] is confirmation that the Second Great Disenfranchisement is in full swing, and we can expect more restrictions on voting rights in the years to come."

Brnovich's reach may be even bigger. The way that Americans vote today is completely different from 1982. What is called convenience voting—such as decades of mailing out ballots to every voter in some states, and the options to vote from home or in person before Election Day—did not exist in 1982. Neither did the voting technology and related election rules in wide use today.

"The expansion of voting rights since the 1980s has repeatedly been met with conservative resistance, first in the form of Republican Party initiated so-called ballot security programs and eventually with extreme voter suppression laws," said Sautter. "But the strategy to eviscerate voting rights with an ultra-conservative controlled judiciary goes back to Nixon and the presidential election of 1968. Until the makeup of the Supreme Court changes, progressives will have a difficult time winning these battles."

In the meantime, the best progressives might hope for is passage of the John Lewis Voting Rights Act, which restores and fortifies the VRA, which Sautter said would "seriously undermine the rationale of Alito's opinion." That scenario hinges on all Senate Democrats voting to create a voting-right exception to the filibuster rule.

On July 13, President Biden gave a passionate speech where he decried the Brnovich ruling and called Republican efforts to subvert voting rights and election results "21st-century Jim Crow." Biden called on Congress to pass sweeping federal voting rights legislation, including the John Lewis Voting Rights Act, but he did not mention the Senate filibuster.

"Just weeks ago, the Supreme Court yet again weakened the Voting Rights Act and upheld what Justice Kagan called, quote, 'a significant race-based disparity in voting opportunities,'" Biden said. "The court's decision, as harmful as it is, does not limit the Congress' ability to repair the damage done. That's the important point. It puts the burden back on Congress to restore the Voting Rights Act to its intended strength."

This article was produced by Voting Booth, a project of the Independent Media Institute.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

Supreme Court Upholds Conviction Of Neo-Nazi Thugs On Riot Charges

Reprinted with permission from Daily Kos

If white nationalists who engaged in acts of thuggish violence at protests during the Trump years were hoping they could escape culpability with the help of the Trump-appointed courts, then that gambit is not looking very solid right now, courtesy of the U.S. Supreme Court.

The high court on Monday announced it would refuse the case of two members of the Rise Above Movement (RAM)—a band of neo-Nazi alt-righters from Southern California who like to travel around the country to participate in far-right protests with the intention of inflicting violence on "leftists"—who wanted to overturn the riot laws federal prosecutors had used to convict them for their violent roles in the August 2017 "Unite the Right" riots in Charlottesville, Virginia.

Members of RAM had flown from California to Virginia in August to participate in the event, and had committed numerous acts of violence there, at the culmination of which a young white supremacist drove his car into a crowd of counterprotesters, killing a young woman named Heather Heyer and maiming 19 other people. Three of the men pleaded guilty to felony federal charges of conspiracy to riot and crossing state lines to riot in May 2019; two of them, Michael Miselis and Benjamin Daley, filed appeals.

In 2020, the 4th U.S. Circuit Court of Appeals had considered the men's conviction and sentencing on the grounds that the Anti-Riot Law used to imprison them was unconstitutionally overbroad. It ruled that while certain provisions in the law—such as those criminalizing speech that "tends to encourage a riot"—are unconstitutional First Amendment violations, it nonetheless upheld the men's convictions because those charges fell under other parts of the law—namely, the men's "substantial conduct," which included "pushing, punching, kicking, choking, head-butting, and otherwise assaulting numerous individuals, and none of which 'were in self-defense'"—which the court found were perfectly constitutional.

The Supreme Court's announcement leaves the convictions of Miselis and Daly, as well as the rulings in their appeals, in place. As is typical, the high court offered no comment in turning away the cases.

Daley faces a 37-month prison term, while Miselis was sentenced to 27 months.

The Rise Above Movement's existence and its activities were first exposed in detail in a ProPublica investigative piece published in October 2017. Nearly a year later, federal prosecutors filed charges against the men and another Charlottesville participant, Cole Evan White. Four other RAM members, including co-founder Robert Rundo, were charged in October 2018 with conspiracy to riot as well; however, their convictions were overturned on appeal in June 2019 by a federal judge who deemed the law unconstitutionally overbroad. Those charges were reinstated this March, primarily as a result of the Ninth Circuit's 2020 ruling.

RAM, as a 2019 sentencing memo explains, "represented itself as a combat-ready, militant group of a new nationalist white supremacy and identity movement. RAM regularly held hand-to-hand and other combat training for its members and associates to prepare to engage in violent confrontations with protestors and other individuals at purported political rallies. All three of the defendants attended these trainings to prepare for their violence."

Like most far-right street-brawling groups, their entire raison d'être was to provoke fights with far-left and anarchist groups, particularly those attached to various campuses in California and elsewhere. "RAM's goal when they attended these rallies was simple: They sought to provoke physical conflict, or—even better—they looked for any reason to serve as an excuse which they believed would justify their use of violence against their ideological foes," the memorandum notes. Their violence included events in Huntington Beach and Berkeley, California, in the spring of 2017.

At the Aug. 12, 2017, event in Charlottesville, the RAM gang once again played a leading role in provoking violence on the streets, both at the Aug. 11 tiki torch march onto the University of Virginia campus and at the main Aug. 12 event in Charlottesville around the Robert E. Lee statue in a downtown park. The men were especially exultant about the Friday night march in which they had massively outnumbered counterprotesters and had mercilessly assaulted them: "After the students and protestors left, Miselis's own Go-Pro video captured him yelling 'total victory' and 'we beat you tonight, we'll beat you tomorrow too!'"

The next day, they engaged in such violence as punching protesters and knocking them to the ground, at which point they began kicking them so hard that Miselis broke his own toe. Daley infamously attacked a feminist and began strangling her, caught in an image reproduced frequently, and then threw her to the pavement with such force that she suffered a concussion.

Afterwards, online conversations made clear that "the defendants' primary regret about their time in Charlottesville was not having exacted enough violence."

Rundo, who fled the country after being cleared on appeals, is now an international fugitive. He is believed to be currently hiding out in Bosnia while being sought by police there, after having been expelled from Serbia.

Liberals Urging Breyer To Quit Court After McConnell Warning

Reprinted with permission from Alternet

Senate Republican Minority Leader Mitch McConnell promised to block any Supreme Court nominee President Joe Biden should put forth if the GOP retakes the Senate next year, and now liberals are urging Justice Stephen Breyer to consider stepping down so Democrats can replace him instead of allowing Republican to create a 7-2 majority.

President Donald Trump, thanks to McConnell, was able to put three justices on the nation's highest court, giving conservatives a 6-3 majority.

Justice Breyer, who is 82, was put on the court by then-President Bill Clinton in 1994. He was confirmed 87-9.

Here's what some are saying:

Alabama Republicans Target Disabled With New Voting Restrictions

Reprinted with permission from Daily Kos

First, Alabama Gov. Kay Ivey came after women, signing into law in 2019 a bill outlawing abortions, even for victims of rape and incest, except when medically necessary. Then, she targeted transgender youth and signed into law on April 23 a bill prohibiting those children from participating in public school sports. Now, Ivey's targeting people with disabilities.

The Republican governor signed a bill into law on Wednesday to ban curbside voting and in effect make casting ballots more difficult for people with disabilities. The unfortunate law prohibits placing voting machines outside of voting places and prevents poll workers from taking ballots into or out of voting places except when done as part of the established process to transport ballots. The bill sponsored by Republican Rep. Wes Allen was passed by the Alabama House of Representatives in a 74-to-25 vote on March 18 and pushed through by the Senate in a 25-to-6 vote on May 17, the last day of the legislative session, the Montgomery Advertiser reported. The ACLU of Alabama tweeted: "With our state in the middle of a devastating pandemic and economic downturn, what is the Alabama Legislature doing? Passing bills that burden or attack Alabamians."

Ivey didn't mention the curbside voting ban's potential impact on people with disabilities in her press release bragging about rubber stamping Republican Alabama Secretary of State John Merrill's voter suppression effort. "Our freedom of speech is rooted in our ability to vote," she instead said. "A strong election process is what sets our democracy apart from every other country in the world." Protecting the electoral process has become a popular guise for voter suppression tactics embraced throughout the country among Republicans, following a triple loss for the party last year in the White House and in two U.S. Senate runoff races, effectively flipping the Senate from majority Republican to majority Democratic.

Maria Schell-Cannon, a mother and educator, called the new Alabama law "disgraceful' in a tweet on Wednesday. "This doesn't prevent fraud, just makes it more difficult 4 the disabled & elderly 2 gt 2 the polls," she said in the tweet. "Sad! The GOP is destroying democracy." Randy Wilson, a real estate investor and father, tweeted on Thursday: "No lottery. No expanded medicaid. No effort to rewrite the antiquated constitution. BUT, we made it a priority on the last day in session to ban curb side voting without a single case of curbside voting or any significant voter fraud. C'mon Alabama..."

Voters and activists brought up the subject of curbside voting last year in a federal lawsuit criticizing voting laws that didn't take into account health risks during the COVID-19 pandemic, and a federal judge sided with activists, AL.com reported. Merrill and Attorney General Steve Marshall, however, successfully appealed the decision, getting the U.S. Supreme Court's permission to ban curbside voting. Justice Sonia Sotomayor wrote in the dissenting opinion that Merrill "does not meaningfully dispute that the plaintiffs have disabilities, that COVID-19 is disproportionately likely to be fatal to these plaintiffs, and that traditional-in-person voting will meaningfully increase their risk of exposure."

Sotomayor also highlighted in her dissent the account of Howard Porter, Jr., a plaintiff in the case and a Black man in his 70s with asthma and Parkinson's Disease. He said in district court "many of my (ancestors) even died to vote. And while I don't mind dying to vote, I think we're past that. We're past that time." Alabama Republicans apparently disagree.

The Constitutional Right To Abortion Is About To Disappear

In one of his 19th-century novels, Anthony Trollope depicts a protagonist who learns that his beloved has accepted a rival's marriage proposal. "A horse will gallop for some scores of yards, after his back has been broken, before he knows of his great ruin; — and so it was with Phineas Finn," he wrote. Soon, however, Finn realizes: "The game was played out, and all his victories were as nothing to him."

This is roughly the position of abortion rights supporters in America. But on Monday, the Supreme Court announced that it would review a Mississippi law that bans nearly all abortions after the 15th week of pregnancy.

The case won't be heard before October, and a decision may not come down for more than a year. But the devastating blow has fallen. We now know that the constitutional right that has been recognized for nearly half a century will not survive in its current form, if at all.

The Mississippi law, enacted in 2018, prohibits abortions after 15 weeks, except "in a medical emergency or in the case of a severe fetal abnormality." No exception for rape, incest or nonemergency risks to the health of the mother. The state declares that any abortion performed after this stage "is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession."

The law represents a direct challenge to the Supreme Court's own rulings, which allow states to forbid abortions only after the fetus is viable, or capable of surviving outside the womb, about 24 weeks into a pregnancy. The court established that rule in the 1973 Roe v. Wade decision and reaffirmed it in 1992.

Under its existing precedents, the law is flagrantly unconstitutional, as both a district court and an appeals court concluded. Five years ago, the justices declined to review a lower court ruling that threw out an Arkansas ban on abortions after 12 weeks.

What's changed? The Supreme Court, which now has three conservative members appointed by President Donald Trump. There is only one possible explanation for why the court would agree to review the statute: At least five justices are ready to let states outlaw abortion long before viability.

Otherwise, the court would have let the lower court ruling stand. "I'd be absolutely shocked if they didn't intend to uphold the law," University of Chicago law professor Geoffrey Stone, author of Sex and the Constitution, told me.

As he notes, the ban would allow most abortions. Some 90 percent of Mississippi abortions take place in the first 15 weeks of pregnancy. Some of those performed later involve the sort of medical emergencies and fetal defects that are covered by exceptions in this ban. For most women, getting a termination would remain within the realm of possibility.

But these figures are cold comfort for any woman who believes she should not be forced to endure the rigors of pregnancy and the dangers of giving birth, which are vastly greater than the risks of abortion. Poor women are particularly likely to be affected. If this law is upheld, some two dozen states are likely to enact similar measures — if not stricter ones.

If abortions after 15 weeks can be outlawed, why not after 12 weeks? Or 10 weeks? Or zero weeks? Having erased the bright line of viability, the conservative justices will find no obvious place to draw a new one — if they want to draw one at all.

Eleven states, including Mississippi, have passed laws that would ban all abortions as soon as the court overturns Roe v. Wade. They now have a realistic hope that those laws will eventually take effect.

If anti-abortion advocates think such bans would prevent women from ending unwanted pregnancies, though, they are kidding themselves. Many abortions involve taking a couple of pills — which, like other illicit drugs, would find willing sellers in a soon-to-thrive underground market. Women in red states could travel to blue states to find legal clinics.

The truly desperate would seek out illegal providers, some of them unsafe, or even try to self-induce. Each year, thousands of women around the world die from illegal abortions, and millions suffer medical complications. The United States can't expect anything different.

For the time being, abortion remains legal and mostly accessible in this country. But it won't be long before Americans who cherish the right to make their own decisions will know of their great ruin.

Steve Chapman blogs at http://www.chicagotribune.com/news/opinion/chapman. Follow him on Twitter @SteveChapman13 or at https://www.facebook.com/stevechapman13. To find out more about Steve Chapman and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

Supreme Court Will Hear Case That Endangers Roe Decision

Reprinted with permission from Daily Kos

Reproductive freedom is under direct threat after the Supreme Court said it will review a Mississippi law placing harsh restrictions on abortion rights. The law in question is one of many passed in states around the country by Republicans seeking to get a challenge to Roe v. Wade heard at the Supreme Court, an effort bolstered by Donald Trump's appointments moving the court sharply to the right.

The Mississippi law bans abortions after 15 weeks, with exceptions only for "severe fetal abnormality" or medical emergency, and not for rape or incest. Roe v. Wade allows abortion until the point of fetal viability, which comes around 24 weeks. Even though the vast majority of abortions take place before 15 weeks of gestation, banning the procedure starting at 15 weeks would give the most vulnerable pregnant people less time to consider their choice, save money if needed, find a provider, and overcome the many barriers states like Mississippi put in their way. Yet, showing the degree to which the Mississippi law is a political move and not one responding to real conditions in the state, the only abortion clinic in the state only performs the procedure up to 16 weeks.

But the political move is a powerful one, reaching far beyond Mississippi: As part of this case, the court will reconsider whether "all pre-viability prohibitions on abortion are unconstitutional." That raises the possibility of shattering decades of the court's own precedent, and it does so for no medical reason.

"In an unbroken line dating to Roe v. Wade, the Supreme Court's abortion cases have established (and affirmed, and re-affirmed) a woman's right to choose an abortion before viability," Judge Patrick Higginbotham wrote for the U.S. Court of Appeals for the 5th Circuit. "States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right but they may not ban abortions."

This is one of the key reasons then-Senate Majority Leader Mitch McConnell held open one Supreme Court seat for the last ten months of Barack Obama's presidency, then filled another in an unprecedented rush in the final weeks before the 2020 election. Now, the Trump-McConnell six to three conservative court could fulfill years of efforts to effectively end women's control over their own bodies and right to decide their futures.

But, uh …

Justice Barrett Ignores Ethical Concerns To Hear Koch Outfit's Lawsuit

Reprinted with permission from Alternet

Supreme Court Justice Amy Coney Barrett is facing backlash for her refusal to recuse herself from a case involving the Koch billionaires who spent a substantial amount of money on political ads ahead of her confirmation.

According to Law & Crime, on Monday, April 26, the Supreme Court heard verbal arguments for two cases: Americans for Prosperity Foundation v. Rodriquez and Thomas More Law Center v. Bonta. Both cases center on First Amendment opposition to a California law requiring select non-profit groups to disclose donor information to the U.S. Department of Internal Revenue Service (IRS).

The top petitioner listed in the case is a non-profit organization spearheaded by billionaires David Koch and Charles Koch. When Barrett was nominated for the nation's highest court by former President Donald Trump, the group shelled out more than $1 million to cover the cost of advertisements to amplify Barrett's image.

During an interview with Forbes, Sen. Sheldon Whitehouse (D-RI) expressed concern about the presumed conflict of interest Barrett is treading toward by refusing to recuse herself from the case.

"Justice Barrett is ignoring important ethical standards to rule on a case that could open our democracy to further infiltration by dark-money influence, perhaps permanently," Whitehouse told Forbes. "Her choice to press forward in spite of recusal laws also creates a troubling new precedent, and undermines public confidence in the integrity of the Court."

Whitehouse and other Democratic lawmakers also penned a letter last week to express their concern.

"Statute, constitutional case law, and common sense all would seem to require your recusal from [the case]," Whitehouse, Sen. Richard Blumenthal (D-CT) and Rep. Hank Johnson (D-GA) wrote. "At a minimum, there should be a public explanation as to why you think recusal is not required under federal law, since your participation in the case on these facts would appear to both conflict with 28 U.S.C. § 455 and effectively overturn [relevant case law]. Understanding this determination will also aid Congress in its ongoing consideration of judicial ethics and transparency rules."

"The American people are alarmed about the seemingly dominant influence of special interests on our politics and government," the trio of Democrats continued. "And the [Koch-funded] operation's 'full scale campaign' for your confirmation makes plain that our judiciary is a target of this massive influence apparatus. Now, in AFPF, the Court takes up an important case that squarely implicates the power of big special interests to exercise their influence from behind veils of secrecy."

"We hope you will consider seriously and address publicly the question of recusal in this case," that letter concluded.

In Stunning Rebuke To Kavanaugh,  Sotomayor Warns Of Radical Trump Court

Reprinted with permission from Alternet

Supreme Court Justice Sonia Sotomayor delivered a strong warning to the American people and a strong rebuke of Justice Brett Kavanaugh and the newest far right wing Justices on the Trump-shaped conservative-majority Supreme Court in a blistering but brilliant dissent handed down Thursday.

Justice Sotomayor warned this newly-constructed court, unevenly weighted with six justices (ranging from highly conservative to far right wing religious extremist,) is "willing to overrule precedent without even acknowledging it is doing so, much less providing any special justification."

That warning is similar to those posed by legal experts from the left who were extremely opposed to then-President Donald Trump's final Supreme Court nominee, Amy Coney Barrett. Justice Barrett's judicial opinions made clear she will not honor precedent, known as stare decisis. Without that legal guardrail many decidedly settled law targets of conservatives, from the right to choose an abortion to the right to marry, could be struck down by the "Trump Court."

The case Justice Sotomayor used to deliver her warning and her criticism of Justice Kavanaugh, is Jones v. Mississippi. It centers on a 15-year old boy who murdered his father, claimed self defense, and was sentenced to life in prison. The U.S. Supreme Court has ruled life in prison for minors convicted of "non-homicide crimes" constitutes cruel and unusual punishment, unless that minor has been found to be "incorrigible," or unable to be rehabilitated. (The ACLU's position is regardless of the type of crime, life in prison for minors is cruel and unusual.)

On Thursday Justice Kavanaugh, who himself has a history of disturbing acts in college, as his confirmation hearing proved, wrote the 6-3 majority opinion in which he upheld the lower court ruling that the defendant was rightly sentenced to life in prison despite no finding of whether or not he is able to be rehabilitated.

"How low this Court's respect for stare decisis has sunk," Justice Sotomayor warned.

"Not long ago, that doctrine was recognized as a pillar of the 'rule of law,' critical to 'keep the scale of justice even and steady, and not liable to waver with every new judge's opinion,'" she wrote, citing Kavanaugh's own opinion in a previous ruling.

"Now, it seems, the Court is willing to overrule precedent without even acknowledging it is doing so, much less providing any special justification. It is hard to see how that approach is 'founded in the law rather than in the proclivities of individuals,'" she added, again using Kavanaugh's own words against him.

She called the ruling a "contortion" of previous rulings, and writes: "As this Court has consistently reiterated, 'a departure from precedent demands special justification.'"

"The Court offers no such justification today. Nor could it," she charged.

"Instead of addressing these factors, the Court simply rewrites Miller and Montgomery," she observes, naming the two cases the provide the precedent today's ruling effectively overrules, "to say what the Court now wishes they had said, and then denies that it has done any such thing."

Slate's legal expert Mark Joseph Stern calls the ruling in the case "barbarous," Sotomayor's warning "ominous," and her criticism of Kavanaugh "one of the most savage passages she has ever written."

University of Michigan Law School asst. professor Leah Litman:


The U.S. Supreme Court has now made emphatically clear it is an activist court and "settled law" is fair game.

Civil rights activists, and the American people who value their rights, consider yourselves warned.