The National Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

Home
The stories you want. The opinions that matter.

Sign up for our Daily Newsletter and never miss a story.

No, thanks
Tag: supreme court

Marco Rubio, ‘States’ Rights’ Advocate, Endorses National Abortion Ban

United States Senator Marco Rubio (R-FL) announced on Wednesday afternoon that he has become a co-sponsor of a national abortion ban that was first proposed by Senator Lindsey Graham (R-SC) on Tuesday.

The legislation would outlaw the procedure after 15 weeks with limited exceptions for rape, incest, and the life of the mother.

Less than three weeks ago, Rubio told CBS News Miami's Jim DeFede that he believes that abortion should be regulated by the states.

“[A]ll the Supreme Court said is that now that debate is not going to happen in Washington — where it wasn’t happening at all because of Roe v. Wade — now that decision has to be made at the state level.... Every state will have its own [law]," Rubio said as noted by MSNBC's Steve Benen on Wednesday.

"Well, I think that right now this issue is appropriately before the states," Rubio added. "That’s where it should’ve always been; that’s where it is now; and I think that’s where it’ll be for the foreseeable future.... Frankly, I think this issue is better decided at the state level."

Rubio's opponent in the hotly-contested race for his Senate seat, House Democratic Representative Val Demings, blasted the incumbent's move on Twitter.

Rubio "just cosponsored the bill to ban abortions and criminalize doctors. He’ll stop at nothing to strip women of our constitutional rights. We have to hold him accountable in November," Demings wrote.

In response, Rubio parroted Republican comparisons to reproductive laws across Europe, where citizens enjoy universal health care, comprehensive sex education, and public assistance when an abortion is needed.

"Restricting abortions to the first 4 months is more lenient than virtually every country in Europe," Rubio tweeted. "The extremists are people like Congresswoman Val Demings who opposes any restrictions & has voted for taxpayer funded abortion for any reason, at any time, up to the moment of birth."

Reprinted with permission from Alternet.

Ginni Thomas Linked To Anti-Abortion Groups That Sought To Influence Justices

Rep. Alexandria Ocasio-Cortez of New York City hasn’t been shy about calling for U.S. Supreme Court Justice Clarence Thomas to either be impeached or resign, arguing that the activism of his wife — far-right MAGA Republican and conspiracy theorist Ginni Thomas — presents a major conflict of interest. After the 2020 presidential election, Ginni Thomas was heavily involved in MAGA efforts to get the election results overturned and promoted the Big Lie in a series of text exchanges with Mark Meadows (who served as White House chief of staff under President Donald Trump). Justice Thomas, AOC has argued, has no business serving on the High Court in light of his wife’s unwillingness to accept democratic election results.

Another conflict of interest for Justice Thomas, according to abortion rights activists, is his wife’s extensive involvement in the anti-abortion movement. That involvement goes way beyond attending or helping to organize anti-abortion rallies. In an article published by The Guardian on September 9, journalist Ed Pilkington reports that Ginni Thomas was extensively involved in lobbying efforts to get the High Court to overturn Roe v. Wade.

On June 24, those lobbyists got their way when the High Court’s radical-right majority overturned Roe v. Wade with its ruling in Dobbs v. Jackson Women’s Health Organization. Clarence Thomas was one of the Republican-appointed justices who voted to overturn Roe, along with Samuel Alito and all three of Trump’s High Court appointees: Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett.

“Ginni Thomas, the self-styled ‘culture warrior’ and extreme right-wing activist, has links to more than half of the anti-abortion groups and individuals who lobbied her husband Clarence Thomas and his fellow U.S. Supreme Court justices ahead of their historic decision to eradicate a woman’s right to terminate a pregnancy,” Pilkington reports. “A new analysis of the written legal arguments, or ‘amicus briefs,’ used to lobby the justices as they deliberated over abortion underlines the extent to which Clarence Thomas’ wife was intertwined with this vast pressure campaign. The survey found that 51 percent of the parties who filed amicus briefs calling for an end to a federal abortion right have political connections to Ginni Thomas, raising concerns about a possible conflict of interest at the highest levels of the U.S. judiciary.”

Pilkington notes that Dobbs v. Jackson Women’s Health Organization “attracted an almost unprecedented 130 amicus briefs from both sides of the legal argument.” The analysis of those amicus briefs was carried out by the group Advance Democracy, Inc. and shared with The Guardian.

“Of those, 74 were filed in favor of overturning the right to an abortion, enshrined in 1973 in Roe v Wade,” according to Pilkington. “In turn, the new analysis shows that 38 of the 74 anti-abortion amicus briefs — 51 percent — were produced by entities and individuals with links to Ginni Thomas. They included right-wing groups, religious interests, prominent conservative individuals and lawyers…. The revelation that there is substantial overlap between Ginni Thomas and the anti-abortion lobbying effort focused on her husband and the other conservative justices will intensify the growing sense of unease surrounding her hyper-energetic conservative activism.”

Pilkington continues, “In recent years, she has placed herself in the thick of some of the most bitterly contested political controversies that have come — or could come — before the Court…. Thomas has been dubbed a ‘radical insurrectionist’ for her role in backing Trump’s attempt to subvert the 2020 presidential election. Yet her husband has refused to recuse himself from cases relating to the insurrection, including one in January in which he became the only justice to dissent in an 8-1 decision over allowing hundreds of documents held by the National Archives to be reviewed by the House committee investigating the January 6 storming of the U.S. Capitol.”

Melissa Murray, a New York law University law professor and co-host of the Supreme Court-related podcast “Strict Scrutiny,” believes that there is a major conflict of interest where the Thomases are concerned.

Murray told The Guardian, “The Thomases are normalizing the prospect of too close an association between the Supreme Court and those who litigate before it. This isn’t the first time that Mrs. Thomas has had dealings with those who come before the Court and seek her husband’s vote.”

When the Dobbs ruling was handed down, Justice Thomas urged the High Court to “reconsider” rulings that offered protections for contraception and gay rights — and the cases he specifically mentioned were 1965’s Griswold v. Connecticut, 2003’s Lawrence v. Texas and 2015’s Obergefell v. Hodges.

“Ginni Thomas’ ties with groups responsible for the whirlwind lobbying campaign over abortion could have serious ramifications in future cases that come before the Court,” Pilkington notes. “Clarence Thomas made it clear, in his concurring opinion in Dobbs, that he intends to use exactly the same arguments that were deployed in overthrowing Roe v. Wade to challenge the constitutional right to same-sex marriage, same-sex relations and contraception. Many of the interests to which Ginni Thomas was connected who filed anti-abortion amicus briefs have a parallel track record of anti-LGBT agitating.”

Reprinted with permission from Alternet.

Fox News Hosts Smear Merrick Garland Over Protection Of Public Officials (VIDEO)

Fox News personalities are now dishonestly engaging in rhetorical whataboutism in response to threats against federal law enforcement from supporters of former President Donald Trump after the FBI searched his Mar-a-Lago resort. In their fictional retelling, the Department of Justice under Attorney General Merrick Garland has taken a hard line against Trump and his supporters, yet has done nothing to protect right-wing Supreme Court justices such as Trump-nominated Justice Brett Kavanaugh who have also received violent threats.

In fact, when an armed suspect was arrested outside Kavanaugh’s home in early June for allegedly threatening to kill him, Garland strongly condemned threats of violence against the justices and described the measures that the Justice Department has taken to protect them.

“Threats of violence and actual violence against the justices of course strike at the heart of our democracy, and we will do everything we can to prevent them and to hold people who do them accountable,” Garland said on June 8. He further outlined actions he had taken the previous month to increase security at the justices’ homes “24/7,” and a meeting he had with court security and law enforcement officials “to ensure every degree of protection available as possible.”

Fox News, however, is telling a different story now. Last Thursday, the network posted an article on FoxNews.com promoting a million-dollar ad buy from the right-wing activist group Judicial Crisis Network attacking Garland for neglecting to protect Kavanaugh, specifically. The article quoted Carrie Severino, the group’s president and a frequent Fox guest, who accused Garland of “continuing to not enforce the law,” apparently referring to a federal law prohibiting protests outside judges’ homes. Many experts believe, however, that this law poses serious constitutional difficulties on free speech grounds regarding protests of Supreme Court justices, and in response the Justice Department has resolved to prosecute any threats of violence or actual violence.

The ad itself, however, did not even discuss the specific law about protests at judges’ homes. Instead, it simply declared that Kavanaugh was being “harassed,” and “threatened,” adding, “even an armed assassin was after him.” The ad then falsely concluded that Garland “could stop it, but doesn’t.” It currently has nearly 1.2 million views on YouTube in addition to viewers who may have seen the commercial airing on TV.

Other Fox News programs have pushed the same flagrantly dishonest talking point in the past several days, attempting to discredit Garland and the Justice Department in the wake of the search at Mar-a-Lago.

On Jesse Watters Primetime, a program which has pushed multiple conspiracy theories following the search at Mar-a-Lago, Watters wrongly claimed Friday night that Garland “wouldn't lift a finger to protect Supreme Court justices, even after a lunatic showed up at Brett Kavanaugh's front door trying to assassinate him.”

Likewise, Fox host Mark Levin claimed on his show Sunday night that Supreme Court justices were being threatened by people gathered at their homes, “and we have an attorney general who will not enforce federal criminal law against them.” In fact, the man who allegedly threatened Kavanaugh is currently facing federal charges.

And, on Tuesday’s edition of Fox Business’ Varney & Co., host Stuart Varney asked former Trump administration Acting Attorney General Matthew Whitaker about a man who was just arrested for posting online threats to kill FBI personnel. Whitaker at first claimed that “the American people, I think, are upset, especially Donald Trump supporters are upset,” essentially reiterating similar comments he had made on Monday blaming the FBI.

He then pivoted to the spurious claim that threats to Supreme Court justices were not being similarly punished. “In my experience, we need to make sure that we treat all political violence as not only abhorrent, but treat it similarly,” Whitaker said. “And there are examples where that hasn’t always been the case, including the threats to, you know, Supreme Court justices.”


The entire point here is that the Justice Department is addressing far-right threats against the FBI just as it is treating far-left threats to conservative justices. But this whole story has revealed the extent to which conservative media have demanded that the laws may not be applied against their side.

Reprinted with permission from Media Matters.

Alito Delivers Partisan Speech Warning Of His Post-Roe Targets

Supreme Court Justice Samuel Alito made a big splash with his first public remarks since eviscerating abortion rights in the United States. Alito’s comments—made at a legal conference in Rome—mocking the world leaders who spoke out against the Supreme Court decision overturning Roe v. Wade drew the most attention, but he also offered a screaming warning about his intentions for future decisions.

“I had the honor this term of writing, I think, the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders—who felt perfectly fine commenting on American law,” Alito said, before going on to single out British Prime Minister Boris Johnson (joking, “he paid the price”) and Prince Harry (not actually a leader).

This was striking, for sure. “Alito apparently didn’t see the need to come across as a dispassionate and fair-minded justice,” Steve Benen wrote of the comments. “Rather, his audience saw a politician giving a political speech, deriding other politicians who dared to disagree with him, and patting himself on the back for having succeeded on a political goal.”

It’s not the first time, either. Benen pointed to a string of past speeches Alito has given that have each seemed surprisingly political for a Supreme Court justice. It’s almost like Alito is operating as a partisan. And now, with his latest speech, he’s telling the world that he does not care that his decision singlehandedly damaged the Supreme Court’s standing with Americans or the world. Since Alito’s decision in Dobbs, support has grown for reforming the court, while its favorability has plummeted.


But not only is Alito mocking the outrage over what he’s already done, he sent a signal about what he’s prepared to do, railing against “hostility to religion” and saying, “ultimately, if we are going to win the battle to protect religious freedom in an increasingly secular society, we will need more than positive law.”

Looking at those comments, legal analyst Chris Geidner tweeted, “When Sam Alito says something like this, that's a sign that the fundamental ways the Supreme Court majority has already eviscerated the Establishment Clause in favor of the Free Exercise Clause are just the first steps he wants the court to take.”

What Alito is telling us with his mockery, his arrogance, his absolute lack of pretense that he’s equally weighing free exercise of religion with other rights, is that he doesn’t care. He’s here as a political figure and he’s going to shape the country’s laws to fit his political preferences as long as he has that power. Senate Democrats should take this as a dare, and they should step up with the reforms the nation’s voters are already embracing.

Reprinted with permission from Daily Kos.

Supreme Court Leak Curtailed Roberts' Effort To Moderate Dobbs Ruling

When the U.S. Supreme Court voted, 5-4, to overturn Roe v. Wade with its decision in Dobbs v. Jackson Women’s Health Organization, Chief Justice John Roberts was the only Republican dissenter. Roberts joined the other Republican-appointed justices in voting to uphold the restrictive Mississippi abortion law that was examined in Dobbs — that part of Dobbs was a 6-3 ruling — but he opposed overturning Roe. And according to CNN legal analyst Joan Biskupic, Roberts tried unsuccessfully to get some of his fellow Republicans to join him in voting not to overturn Roe.

“Chief Justice John Roberts privately lobbied fellow conservatives to save the constitutional right to abortion down to the bitter end, but May’s unprecedented leak of a draft opinion reversing Roe v. Wade made the effort all but impossible, multiple sources familiar with negotiations told CNN,” Biskupic reports. “It appears unlikely that Roberts’ best prospect — Justice Brett Kavanaugh — was ever close to switching his earlier vote, despite Roberts’ attempts that continued through the final weeks of the session.

New details obtained by CNN provide insight into the high-stakes internal abortion-rights drama that intensified in late April when justices first learned the draft opinion would soon be published. Serious conflicts over the fate of the 1973 Roe were then accompanied by tensions over an investigation into the source of the leak that included obtaining cell phone data from law clerks and some permanent Court employees.”

In 2018, Sen. Susan Collins of Maine, a pro-choice Republican, drew a great deal of criticism from abortion rights defenders when she announced that she would be voting to confirm Kavanaugh to the U.S. Supreme Court. Collins insisted that Kavanaugh considered Roe v. Wade “settled law,” but in Dobbs, Kavanaugh ultimately joined four other Republican-appointed justices in voting to overturn Roe: Clarence Thomas, Samuel Alito and Donald Trump appointees Neil Gorsuch and Amy Coney Barrett. Rep. Alexandria Ocasio-Cortez of New York City has argued that Kavanaugh and Gorsuch should be impeached because they lied about their position on Roe during their Senate confirmation hearings. According to AOC, Kavanaugh and Gorsuch “lied under oath” about where they stood on Roe.


Biskupic explains, “Multiple sources told CNN that Roberts’ overtures this spring, particularly to Kavanaugh, raised fears among conservatives and hope among liberals that the chief could change the outcome in the most closely watched case in decades. Once the draft was published by Politico, conservatives pressed their colleagues to try to hasten release of the final decision, lest anything suddenly threaten their majority. Roberts’ persuasive efforts, difficult even from the start, were thwarted by the sudden public nature of the state of play. He can usually work in private, seeking and offering concessions, without anyone beyond the Court knowing how he or other individual justices have voted or what they may be writing. Kavanaugh had indicated, during December oral arguments, that he wanted to overturn Roe, and CNN learned that he voted that way in a private justices’ conference session soon afterward. But the 2018 appointee of former President Donald Trump, who had been confirmed by the Senate only after expressing respect for Roe, has wavered in the past and been open to Roberts’ persuasion.”

Abortion rights defenders feared the worst in the Dobbs case. And their fears were confirmed on May 2, when Politico published Alito’s leaked majority draft opinion in Dobbs — one in which he declared that Roe had been wrongly decided by the Burger Court back in 1973. Then, on June 24, the Court announced its final decision in Dobbs, overturning Roe after 49 years, setting off massive protests all over the United States.

“The final decision flouted the Court’s traditional adherence to judicial restraint and precedent,” Biskupic observes. “Polls show public approval of the Court falling significantly, as the decision has been regarded as a product of politics rather than neutral decision-making. Roberts’ efforts directed toward Kavanaugh and to a lesser extent newest conservative Justice Amy Coney Barrett were anticipated. Some anti-abortion advocates and conservative movement figures had feared that Roberts would sway either Kavanaugh or Barrett from the draft opinion written by Justice Samuel Alito that was an all-out rejection of Roe and women’s privacy rights.”

Reprinted with permission from Alternet.

Endorse This! RuPaul Roasts Ted Cruz On Marriage Equality

Filling in for Jimmy Kimmel, guest host RuPaul laid into pretend human being Ted Cruz during a recent taping of Jimmy Kimmel Live.

“Sen. Ted Cruz says that the Supreme Court was clearly wrong about its 2015 same-sex marriage ruling,” the drag icon said of the Texas senator. “In gayer news: Child, fuck Ted Cruz.”

The legendary drag performer and host of RuPaul's Drag Race spoke out amid increasing fears that the Supreme Court — which jeopardized abortion rights when it overturned Roe v. Wade — might soon come after gay marriage.

While Democrats in the House quickly passed a bill to ensure that gay marriage stays intact at the federal level, Republicans in the Senate either oppose gay rights or prefer to ignore the matter. And of course Sen. Ted Cruz had to reiterate his anti-gay bigotry -- despite the fact that his teenage daughter has publicly rebuked her dad and come out as bisexual.

Fun for the whole family!

Watch the entire segment below:

Why Democrats Should Push A Federal Abortion Rights Statute Now

In the wake of the Supreme Court decision overturning Roe v. Wade, Democrats are caught up in a war they thought they couldn't lose, trying to fend off a wave of state anti-abortion laws. But Joe Biden, despite his reputation for caution and compromise, has bigger ambitions than playing defense.

After the Supreme Court abolished the right to abortion, the president pointed out that there is a way to restore it: through federal legislation. "We have to codify Roe v. Wade into law, and the way to do that is to make sure Congress votes to do that," he said in June. That would override state abortion bans. If passing it requires making an exception to the filibuster — which requires 60 votes for almost any bill — Biden said he's ready to do it.

This is a pivotal change of heart, and one Democrats should build on. They have public sentiment on their side. A recent NPR/PBS NewsHour/Marist poll found that 56 percent of Americans opposed the court's decision. A Pew Research Center survey found that 61 percent think abortion should be legal in all or most cases — with only 37 percent saying it should be illegal in all or most cases.

Abortion-rights supporters may despair at the obstacles that loom ahead. To begin with, Biden hasn't got all 50 Democratic senators on board with his filibuster proposal. Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia have opposed the idea.

But he can certainly deploy all his leverage and deal-making skills to change their minds. The Supreme Court decision may have changed the political atmosphere enough to make them reconsider.

If that fails, Democrats can proceed to Plan B: campaigning in Senate races on a promise to reform the filibuster to protect abortion rights.

As Sen. Elizabeth Warren, D-Mass., said in June, all that is needed are "two more senators on the Democratic side, two senators who are willing to protect access to abortion and get rid of the filibuster so that we can pass it." The issue could also help House Democrats by raising the stakes over who controls the lower chamber.

Pessimists may point out that any law passed by a Democratic Congress and signed by a Democratic president can be repealed by a Republican Congress and a Republican president — which the country may get in 2025. So codifying Roe might be a transient achievement. It could even be replaced with a federal ban on abortion.

But a transient achievement is an achievement for as long as it lasts. Besides, there is no guarantee that the GOP will win the trifecta in 2024. Nor is it certain that if it does, every Republican would vote for a federal ban. Some might prefer to leave the matter up to the states, in deference to principles of federalism.

Democrats who support abortion rights but incline toward despair may conclude that Republicans wouldn't need to repeal a codification of Roe — because it would not survive anyway. The law, after all, would have to pass muster with the same Supreme Court that just scrapped Roe.

Conservatives argue that the Constitution gives Congress no power to legislate abortion rights. Elon University law professor Thomas J. Molony wrote in The Wall Street Journal, "The Constitution doesn't empower Congress to force states to allow abortion against their wishes."

But this is a fight liberals can most likely win. The court has long taken an expansive view of the power of Congress over interstate commerce.

Ilya Somin, an originalist legal scholar at George Mason University, writes that "the Supreme Court has held that Congress' power to regulate interstate commerce includes the authority to restrict almost any 'economic activity,' so long as it has a 'substantial effect' on interstate trade."

What's more, he says, "'economic activity' is defined very broadly to include anything that involves the 'production, distribution, and consumption of commodities.'" As Somin notes, the court upheld "a federal ban on the possession of marijuana that had never crossed state lines or been sold in any market (even an intrastate one)."

Justice Brett Kavanaugh, who voted to overturn Roe, apparently has no issue with Congress legislating in this realm. In his concurring opinion, he wrote that the Constitution leaves abortion "for the people and their elected representatives to resolve through the democratic process in the states or Congress."

After their demoralizing defeat on Roe, Democrats face a fearsome challenge in trying to restore the rights that were lost. But if there is anything to learn from the success of the anti-abortion cause, it's that they should aim high and never give up.

Reprinted with permission from Creators.

Far-Right Activist Boasts Of Praying With Justices In Supreme Court Building

Peggy Nienaber may provide her own downfall thanks to hubris. Rolling Stone revealed on Wednesday that the far-right activist, who serves as vice president of the nonprofit anti-abortion group Faith & Liberty and serves as Liberty Counsel’s executive director of D.C. Ministry, was caught bragging about praying with Supreme Court justices. While appearing on a livestream she didn’t realize was being recorded, Nienaber confirmed that she prays with some of the justices inside the Supreme Court itself.

“They will pray with us, those that like us to pray with them,” Nienaber said, adding with a laugh, “Some of them don’t!” This claim was backed up by the founder of the ministry that ultimately got absorbed into Liberty Counsel, which the Southern Poverty Law Center has designated as a "hate group."

Rob Schenck, who used to work alongside Nienaber, has since renounced his actions. From the late 1990s onward, he says he prayed with Samuel Alito, Clarence Thomas, and Antonin Scalia in the Supreme Court itself.

The prayers never directly mentioned cases, but clearly worked their manipulative magic, though Schenck seems shocked by this. “I was sure, while we were doing it, it would be a positive contribution to our public life,” Schenck told Rolling Stone. “It didn’t have the effect I thought it would. In some ways, it set the stage for the reversal of Roe, which I now think of as a social catastrophe.” Rolling Stone also points out the conflict of interest in this practice that Nienaber has continued, as her group, Liberty Counsel, “frequently brings lawsuits before the Supreme Court.” An amicus brief from the group was even cited in the majority opinion for Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.

Liberty Counsel, a 501 tax-exempt organization allegedly dedicated to litigating cases regarding religious freedom and the so-called sanctity of life, has already been cited by the Southern Poverty Law Center as an extremist group pushing an anti-LGBTQ agenda. It’s clear from its website that abortion is the cause du jour for the organization, which pushes outlandish talking points that reproductive rights somehow, say, constitute eugenics. And Liberty Counsel’s influence isn’t just a Supreme Court problem, either. Nienaber’s influence in politics cannot be understated: Per Rolling Stone, she’s been seen with Republicans like Sen. Lindsay Graham and former vice president Mike Pence, along with—of course—justices like Brett Kavanaugh and Clarence Thomas.

Reprinted with permission from Daily Kos.