We should have taken her more seriously. It was the summer of 2018 when a Twitter user named Amanda Blount inadvertantly launched a viral meme mocking Alex Jones’ claim that Democrats were planning to launch a second civil war over the July 4th holiday to unseat President Trump. Mimicking the Ken Burns miniseries, lefties had a field day with #secondcivilwarletters.
My Dear John,
The war isn't going as planned. Our supply trucks are limited. I'm out of wine and sunscreen. The enemy burned all the books and there is no place to recharge my Kindle. The only music is an old CD of Justin Bieber. – All is lost. #secondcivilwarletters
Since then, “every accusation is a confession” has gained traction on the left. What conservatives accuse the left of doing is often what the extremist right is actually doing. A second civil war by “patriots” could look like the scattered, low-grade terrorism actually playing out across the country every day.
Jeff Sharlet’s “January 6 Was Only the Beginning” appeared in the July/August 2022 issue of Vanity Fair. But hearing his audiobook reading in “The Undertow: Scenes from a Slow Civil War” delivers more punch. He lived it. He was there. At a Sacramento rally for MAGA martyr Ashli Babbitt. At Glad Tidings, a “militia church” in Yuba City afterwards, to hear David Straight, a guy from deep down the MAGA/QAnon rabbit hole, deliver the faithful the true facts:
Hillary, we learn, has secretly already been executed. You’ve seen her since? Green screens. There are, we learn, two United States: the one that “lives in our hearts” and the wicked one in Washington. Trump’s not only still president of the real one, he’s the 19th president, because most of the others since Lincoln, including Honest Abe, were illegal.
[…]
We learn that by signing our birth certificates, our mothers unwittingly made us slaves. Yes, slaves. It goes back to the 14th Amendment. You may think that’s the one that ensured the rights of formerly enslaved people—“equal protection of the laws.” That’s what they want you to think. “It’s not your fault,” Straight says. You were fed fake news. Critical race theory. You don’t know that the 14th Amendment made you—true American “you”—a slave.
Listening to Sharlet’s narration the other day creeped me out. The suspension of disbelief at Glad Tidings to Straight’s ravings parallels the mysticism in vogue at 90s New Age conventions I studied. The empowering thrill of possessing secret knowledge delivered by “internationally recognized” grifters. There were crystals and unspecified “energies,” angels and aliens (benign and malign), UFO cranks, and outlandish tales of dark conspiracies lapped up without question by attendees who checked their brains at the door. I witnessed it 30 years ago. Except New Agers weren’t stockpiling guns, ammo and body armor.
Revisit Digby’s Monday post, “The Education War.” Jonathan Chait does not name-check Seven Mountains Dominionism in “Indoctrination Nation,” but that’s the source of the right’s “existential need to use their political power to seize the commanding heights of the culture,” as Chait puts it. Because in their view, the enemy (that’s you) “permanently controls the cultural high ground.” Thus, “Republicans lose even when they win.”
Culture war is not a metaphor. Neither is “slow civil war.”
Mike Luckovich has been on a roll. He posted this cartoon to Twitter on Friday.
This story from the L.A. Times about a 9-year-old and her goat got mine:
Every day for three months, Jessica Long’s young daughter walked and fed her goat, bonding with the brown and white floppy-eared animal named Cedar. But when it was time for Cedar to be sold and slaughtered at the Shasta District Fair last year, the 9-year-old just couldn’t go through with it.
“My daughter sobbed in her pen with her goat,” Long wrote to the Shasta County fair’s manager on June 27, 2022. “The barn was mostly empty and at the last minute I decided to break the rules and take the goat that night and deal with the consequences later.”
Long purchased the goat for her daughter to enter into the 4-H program with the Shasta District Fair. Children are taught how to care for farm animals. The animals are then entered in an auction to be sold and then slaughtered for meat in hopes of teaching children about the work and care needed to raise livestock and provide food, as farmers and ranchers do.
In her letter, Long pleaded for the fair to make an exception and let her and her daughter take Cedar back. Aware that Cedar had already been sold in auction, she also offered to “pay you back for the goat and any other expenses I caused,” according to the letter obtained by The Times.
A young girl didn’t want to slaughter the goat she raised for 4H. The state senator who bought the goat at auction agreed to let it live out its days eating weeds. But sheriff’s deputies drove 500 miles to kill the goat and teach a 9-year-old a lesson. https://t.co/3U5dY27paR
Not just no, but hell, no, said Shasta County officials. (Yes, that Shasta County.)
“Making an exception for you will only teach [our] youth that they do not have to abide by the rules,” Shasta District Fair Chief Executive Melanie Silva responded to Long in an email before dispatching sheriff’s deputies across 500 miles of Northern California to locate the goat.
Deputies obtained a search warrant permitting them to “utilize breaching equipment to force open doorway(s), entry doors, exit doors, and locked containers” as they might during a drug bust. And to search “storage rooms, and outbuildings of any kind large enough to accommodate a small goat.”
Deputies eventually located and confiscated Cedar who was slaughtered for a barbecue.
Long filed a federal lawsuit alleging violation of her and her daughter’s 4th and 14th Amendment rights.
“It was never about money,” said Vanessa Shakib, an attorney for Advancing Law for Animals who represents Long. “County officials were clear that they wanted to teach this little girl a lesson.”
Given the spreading atmosphere of misogyny across the land (and the MAGAness of Shasta County), perhaps the response was not surprising.
“It’s shocking,” said Ryan Gordon, an attorney with Advancing Law for Animals. “It’s a little girl’s goat, not Pablo Escobar.”
“Unveiling is tantamount to enmity with [our] values,” said an Iranian judiciary official. “[A]nomalous acts will be punished” and “prosecuted without mercy,” he said without elaborating.
Cedar the goat might testify to that but was unavailable for comment.
The parallels I’m drawing are not extreme. That attitudes of fanatics in authority are. And they reflect an opinion among minority conservatives, particularly religious ones. They will be damned if they won’t see women and minorities put back in their “proper” places.
Traditionally disfavored women and minorities of all kinds have had enough of that shit. They demand treatment as equal citizens in this country, as is their right, and as women still protesting in Iran believe it should be.
But the backlash against modernity thst began in the U.S. after the 1960s has grown stronger in the U.S. since 2008 and stronger still since 2020. It will surge again with the arrest and indictments of hardliners’ bigoted avatar. They want to turn back the clock 70 years, if not 100.
Behold:
Talked to this Trump supporter who’d like to get back to a time before the civil rights movement. pic.twitter.com/6W8ggL5VxI
We barely had time to catch our breath from the wild spectacle of the Republicans finally electing a speaker when their next spectacle started with a bang. Treasury Secretary Janet Yellen abruptly announced that the U.S. will hit the so-called debt ceiling on Jan 19, putting the issue immediately on the front burner. The government can move money around to keep paying its bills until some time next summer, but this is already shaping up to be an exhausting, months-long battle royale. It’s probably a good thing that they’re getting an early start since the MAGA House majority seems to need some serious remedial instruction on how the world works.
That’s not to say that debt-ceiling standoffs are some core tactic of the MAGA movement. In fact, Republicans raised the debt ceiling three times during the Trump administration with no fuss at all. They never felt it necessary to try to persuade Trump to cut spending, and the Freedom Caucus didn’t utter a peep as he massively increased the deficit. These hostage situations are reserved for times when the GOP holds the House and a Democrat is in the White House. Shocking, I know.
This debt ceiling vote is a ritual with no real purpose. The government made the decision during World War I, for reasons that should have been temporary, to require a vote to agree to pay the nation’s bills. This makes no sense: Congress already voted to spend the money, so it’s ridiculous to require another vote to pay it out. In fact, after the Civil War, the drafters of the 14th Amendment, concerned that Southern Democrats (pretty much the MAGA types of that day and age) would make good on their threat to disavow the national debt incurred during the war, explicitly wrote into the Constitution the words, “the validity of the public debt of the United States … shall not be questioned.”
Not only are payments for necessary services, from Social Security and Medicare to food safety and even the sacred-to-Republicans border security at risk, as the Washington Post’s Catherine Rampbell explains, this could tip the entire global economy, already in a fragile state, over into crisis:
Until now, U.S. debt has been considered virtually risk-free. The riskiness of all other assets around the world is benchmarked against the relative safety of U.S. Treasury securities. If the U.S. government reveals itself to be an unreliable borrower, however, expect to see shockwaves course through every other financial market, as many question how safe (or not) those other investments might be. This is the last thing the economy needs amid fears of a global recession.
The bottom line is that this debate is ridiculous. Unfortunately, the Republican Party is even more ridiculous these days, so we are destined to play chicken with the good faith and credit of the U.S. government every time these circumstances present themselves.
It should be noted that all of this was evident when the Democrats still had the House majority, which was more than willing to raise the debt ceiling during December’s lame-duck session. Unfortunately, the Diva Twins, meaning Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, refused to eliminate the filibuster or use the budget reconciliation process to get it done.
Luckily, not all Democrats fail to grasp the moment. Sen. Brian Schatz of Hawaii phrased things perfectly, channeling Michael Corleone in “The Godfather Part II,” when asked what Democrats might be willing to offer Republicans: “In exchange for not crashing the United States economy, you get nothing.” Regarding demands that Democrats sit down with their opponents at the negotiating table, he replied, “We have to tell them there is no table.”
Previous debt ceiling standoffs came perilously close to crashing the world economy. This new GOP crew is champing at the bit to see if they can get that done this time around.
You can’t negotiate with people who behave the way these Republicans are behaving. They aren’t just delusional but also massively ignorant about what they’re attempting to do. Take, for example, Rep. Marjorie Taylor Greene of Georgia, just named to the House Oversight and Homeland Security committees, who said this on Steve Bannon’s podcast shortly after the November election:
What we have to do is, Republicans, when we’re in control of the purse and we’re setting these appropriation bills, and our budget is — we have to refuse to raise the debt ceiling. We have to get spending back under control and we have to do that by any means possible. And if that means a government shutdown, then I’ll be calling for a government shutdown. Because this government — and you can see the people support what I’m saying, Steve – because this government shut our country down with those COVID shutdowns.
That is literally gibberish, completely incomprehensible. Rep Andy Biggs, R-Ariz., made an even dumber comment:
We cannot raise the debt ceiling.
Democrats have carelessly spent our taxpayer money and devalued our currency.
That doesn’t make any sense either. Our currency is not “devalued,” and that’s got nothing to do with the debt ceiling in any case. He apparently doesn’t even grasp that taking the debt ceiling hostage is about trying to force Democrats to agree to massive spending cuts in the future, in exchange for paying the bills today. Evidently he doesn’t want to pay them at all.
Here’s some more gibberish from the actual speaker of the House, when asked about Democrats’ demands for a clean debt ceiling increase:
Would you just keep doing that? Or would you change the behavior? We’re six months away? Why wouldn’t we sit down and change this behavior so that we would put ourselves on a more fiscally strong position?
Here’s another idea that’s always popular on the right — which would be necessary if they really plan to eliminate the national debt completely, as McCarthy apparently promised in his backroom deals during the speakership saga:
Holy shit. Top Republican Rick Allen (R-GA) was just recorded saying his party is going after Social Security because people “want to work longer.” (h/t @SSWorks) pic.twitter.com/gQln56a4A2
— No Lie with Brian Tyler Cohen (@NoLieWithBTC) January 16, 2023
Rep. Jim Jordan of Ohio is at least a bit more coherent, recognizing that Republicans may have stepped on the third rail with talk about cutting military spending, which one of the backroom negotiators, Rep. Chip Roy of Texas, says was never on the table. Jordan said, “Military cuts could be made by eliminating ‘woke policies’ & re-examining aid to Ukraine, allowing the government to focus more on troops and weapons systems.” There’s also been talk about eliminating much of the officer corps, which would be an interesting experiment.
Hilariously, Republicans are trying to spin the impending mess this way:
Rep. Good (R-VA): I hope the President and the Senate would not risk a government shutdown or some kind of a government default by recklessly rejecting spending cuts pic.twitter.com/yQhp6eDRB6
That’s cute, but it’s not going to fly. Republicans have already shown the whole country that they are wildly unhinged, and nobody will mistake which party is being reckless and which isn’t.
It’s also clear that they don’t care. Donald Trump, their battered spiritual guru, explains what it’s really all about:
It’s about putting on a spectacle to own the libs, of course. What else would it be? Trump may have lost some of his mojo but his legacy is secure. The Republican Party is still MAGA all the way down.
Does the 14th Amendment’s Sec. 2 means what it says?
“We swear oaths on the Constitution. We are taught every word; indeed, every comma counts,” writes Michael Meltzner at The American Prospect. Except when they don’t. Until they do:
This month, a special three-judge federal district court, and the Supreme Court eventually, will be asked to resurrect 135 words of the Constitution that have never been enforced, even though they were specifically intended to ensure all Americans could vote free of only the most minor government regulation.
Though few even know of its existence, Section 2 of the 14th Amendment is perfectly clear. It provides that, if any state abridges the franchise of males over 21, “except for participation in rebellion, or other crime,” that state loses the equivalent population numbers counted to determine representatives in Congress. Subsequent amendments to the Constitution erased the gender and age limitations, but the core meaning of Section 2 remains intact.
Whole lotta abridgin’ goin’ on out there. And as I’ve noted before, going unchallenged by that Section 2 provision. That is until Citizens for Constitutional Integrity v. Census Bureau. Lots of attention to the 14th’s due process and equal protection clauses, yes. But Section 2 was included for a reason, Meltzner explains.
Without it, former Confederate states would enjoy greater representation in Congress brought by the elimination of the three-fifths clause. Yet it would mean former rebels would wield disproportionate influence on legislation if they could prevent former slaves from exercising the franchise.
The result was a provision that by its terms applies to almost any means of disenfranchisement, not just racial. Think limiting voting sites and hours, doing away with drop boxes, and many more. In the pending lawsuit, plaintiff’s lawyer Jared Pettinato, a nine-year veteran of the Department of Justice, gives an example of how the provision would work. It is alleged in the suit that Wisconsin’s strict photo ID law, which former GOP staffers have acknowledged was intended to disenfranchise Democrats, results in abridging the votes of some 300,000 voters, approximately 9 percent of the state’s registrants. If Section 2 were applied as intended, Pettinato argues that Wisconsin would lose a congressional district due to this disenfranchisement, a seat that New York, for example, would gain.
With one exception, efforts to end disenfranchisement by applying Section 2 have yielded little except frustration. Unlike today, the Census Bureau in 1870 hadn’t the tools or the manpower to come up with the necessary statistics on how many individuals were intentionally denied the right to vote that year, and it therefore abandoned the effort. Occasional moves over the years by individual legislators were defeated. Once Jim Crow took hold, Southern states were left free well into the 20th century to adopt property and educational tests that made registration impossible for even those Blacks who tried to vote, despite threats of violence or loss of employment. Poll taxes were not finally banned until 1956.
The NAACP Legal Defense Fund (LDF) brought a case in the mid-1960s based on Section 2. Judge Carl McGowan deferred to invoke a Section 2 remedy, citing the recently adopted Voting Rights Act of 1965 as likely to address the issue of disenfranchisement. But, he added, “it is also premature to conclude that Section 2 … does not mean what it appears to say.” That was then, decades before the Roberts Court gutted Section 5 of the Voting Rights Act in 2013’s Shelby County v. Holder ruling.
[T]he North Carolina State Senate dumped in a laundry list of voter suppression provisions that ballooned HB 589 into a 57 page collection of the most restrictive voter suppression regulations since the Jim Crow era. All of this while at the same loosening campaign finance restrictions on politicians. Apparently the Republican Supermajority felt that the voters of North Carolina needed to be regulated, but for politicians to be kept under the government thumb was just too much.
Efforts like that are among “a startling return of efforts in some states to suppress the franchise,” Meltzner writes. “A vital Section 2 would stop them. The upcoming case before the three-judge court will ultimately decide if the words of the Constitution will be given life or rendered obsolete.”
Don’t hold your breath for originalists on the Roberts Court to grasp that the 14th Amendment’s Section 2 means what it says.
Happy Hollandaise everybody. If you would like to help support us for another year you can do so with through the address on the left sidebar or with the buttons below. Thank you!
A Florida man‘s announcement Tuesday night of his third campaign for president was so uncompelling that people felt compelled to leave. Florida Man’s staff compelled them to stay.
And so, with four brief paragraphs on page 26, New York Post breaks the news about a perennial candidate's third try, with cholesterol levels "unknown": pic.twitter.com/9xsA6Am94E
Cicilline says “The legislation details testimony and evidence demonstrating how Donald Trump engaged in insurrection against the United States.” pic.twitter.com/vMIuKQLdfZ
For your radar: Just minutes before his speech, our colleague Nick Wu scooped that some House Democrats, led by Rep. DAVID CICILLINE (D-R.I.), are exploring a last-ditch effort to block Trump from returning to the presidency by invoking the 14th amendment. In case you slept through civics class, that provision of the Constitution states that anyone who “engaged in insurrection or rebellion” shall not hold public office. It’s an untested provision, to put it mildly, but watch this space in the coming days.
No, Politico, Section 3 is not untested.
After the Jan. 6 attacks, Rep. Cori Bush (D-Mo.) and dozens of Democratic House cosponsors submitted a resolution aimed at expelling several Republicans who supported efforts to overturn the election of President Biden. It went to committee to die.
Similar private efforts aimed at disqualifying Reps. Madison Cawthorn (R-N.C.) and Marjorie Taylor Greene (R-Ga.) also failed. Cawthorn lost his primary, rendering the case moot. But the U.S. Court of Appeals for the 4th Circuit ruled that the provision does apply to participants in an insurrection. Greene challenged the lawsuit against her and won. A judge found “there is no evidence to show that Rep. Greene participated in the invasion itself.”
A New Mexico District Court judge, however, ruled that an Otero County commissioner convicted of particpating in the Capitol attack on Jan. 6 was disqualified from holding office on 14th Amendment grounds. It was the first time since the Civil War that an official was removed under the provision, said Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, or CREW.
Given evidence turned up by the Jan. 6 investigation, Cicelline is trying Section 3 again (Washington Examiner):
“Tonight, Donald Trump is expected to announce his third bid for the Presidency of the United States even though he forfeited his right to ever hold federal office again for leading an insurrection against the United States,” wrote Cicilline, who led a previous impeachment against Trump for the Jan. 6, 2021, Capitol riots. “The legislation details testimony and evidence demonstrating how Donald Trump engaged in insurrection.”
One might think Trump is Democrats’ best fundraising and organizing asset going into 2024. Why attempt to disqualify him? Republicans would not if the situation were reversed. But Democrats actually mean to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” They consider that duty more important than political advantage.
The Grand Canyon state is up to its old tricks again
Contrary to popular myth, the United States was not founded on the concept of “one person, one vote.” In fact, there isn’t a right to vote enshrined in the Constitution at all, a fact which the late Justice Antonin Scalia made sure to mention in his notorious Bush v. Gore opinion that decided the 2000 election. Managing elections was at first left entirely up to the states, which meant that in most places, most of the time, only white male landowners had the franchise. It took several decades, until the Andrew Jackson era, before essentially all white men were allowed to vote, let alone anyone else. (A few property-owning African Americans were permitted to vote in Northern cities before the Civil War, but no women could vote anywhere until Wyoming enacted universal suffrage in 1869.)
After the Civil War, the end of slavery and the 14th Amendment, all Black men were officially granted citizenship, but very few were allowed to vote before the enactment of the 15th Amendment in 1870, which specified that the right to vote “shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” That led to the brief period of Reconstruction, which saw Black men not just voting across the South but also elected to high office: Sixteen African Americans served in Congress (including two U.S. senators) and several hundred served in state legislatures. But by the 1880s all that was over, as Southern whites (with the federal government’s permission) launched the systematic disenfranchisement, vote suppression and voter intimidation of the Jim Crow era, meaning that virtually no Black people in the South could vote until the civil rights movement of the 1950s and ’60s led to the passage of the Voting Rights Act.
But it’s a mistake to believe that voter suppression only happened in the Deep South — or only happened in the distant past. Over the past 20 years we’ve seen a huge resurgence of such tactics in most states run by Republicans. In Florida, Wisconsin, New Hampshire, Maryland, Indiana and Texas, for example, GOP officials have purged voter rolls, limited early voting and mail-in ballots, established “caging” lists, spread voting disinformation and enacted onerous voter-ID laws and ballot requirements. Just this week, a pair of notorious GOP dirty tricksters were convicted of felony telecommunications fraud in Ohio for spreading false information by robocall in 2020.
Most of those tactics, primarily (although not exclusively) targeting Black and Latino voters, were assumed to be illegal under the Voting Rights Act of 1965 — at least until the conservative-majority Supreme Court struck down huge portions of the act in their 2013 ruling from Tennessee, Shelby County v. Holder. The justices held, in an astonishing denial of reality, that voter suppression was no longer much of a problem in the South (or anywhere else) so many of the Voting Rights Act’s provisions were no longer necessary.
Last year the high court outdid itself with the decision in Arizona’s Brnovich v. Democratic National Committee case, upholding a ban on what they called “ballot harvesting” — that is, collecting and turning in mail ballots by anyone other than a voter’s immediate family members or caregivers — and allowing states to toss out any ballot cast in the incorrect precinct. Republicans are effectively creating updated Jim Crow-style voting restrictions all over the country, with the support of a supermajority on the Supreme Court.
Arizona, however, must be regarded as a special case. While many states had discriminatory laws of one kind or another until fairly recently, Arizona has been on the voter suppression bandwagon all along, and stands as the leading example so far in 2022. That “live and let live” libertarian spirit of the Southwest seems to have led conservatives in the Grand Canyon State to a culture of election intimidation that just won’t quit.
I’ve noted in severalcolumns over the years the famous Arizona suppression scheme from the early 1960s known as Operation Eagle Eye. It’s particularly famous because the late William Rehnquist, chief justice of the Supreme Court from 1985 to 2005, was an eager participant early in his career.
The New York Times reported this during Rehnquist’s confirmation process in 1986:
Republicans say that in the 1960, 1962 and 1964 campaigns, he helped plan and direct a poll-watching program that was intended to block what Republicans called illegal attempts by Democrats to win elections by bringing large numbers of unqualified black and Hispanic residents to the polls shortly before they closed.
They also had a special trick:
A Phoenix lawyer and longtime Democratic activist, who said he did not want to be identified because he expected Justice Rehnquist to be confirmed as Chief Justice, said that at the 1962 election he was photographed by William Rehnquist as he and another Democrat approached a voting precinct in a minority community.
”We asked him what he was doing, or perhaps he just told us, ‘I’m taking pictures of everybody,’ ” the lawyer recalled. ”We asked if that wasn’t harassment. He just laughed and said, ‘There’s no film in the camera.’ ”
That sounds familiar, doesn’t it? We are getting daily reports of armed, masked yahoos dressed in tactical gear staking out ballot boxes in Arizona filming people dropping off their ballots.
The sheriff of Maricopa County, which includes the city of Phoenix and has a population of 4.5 million, said he has been forced to increase security at drop boxes so voters can feel safe dropping off their ballots. This “monitoring” is being done at the behest of “voter integrity” groups that have been gathering in the state and around the country, claiming they are training “poll watchers” to make sure that the election is on the up and up. It doesn’t sound as if that’s their actual goal.
This is voter intimidation plain and simple, just as it was when Rehnquist stood there taking pictures of voters (whether or not there was film in the camera). And it’s being endorsed, of course, by extremist election denier Mark Finchem, the Republican nominee for Arizona secretary of state, who tweeted this week, “[George] Soros does not want people to watch their shenanigans. We must watch all drop boxes because they do not have live cameras on them streaming to the public for people to ensure there is no fraud in the process.” That’s the man who will be in charge of Arizona’s elections if he wins the election on Nov. 8. (Notice the cutting-edge MAGA touch of sneaking in a little old-fashioned antisemitism. It’s all the rage these days.)
Citizens who are simply driving up to drop off their ballots are confronted with these people who record them doing it, photograph their license plates and in some cases even follow them in an apparent effort to figure out where they live. Several complaints have been forwarded to the Department of Justice and two lawsuits have already been filed. Whether John Roberts’ Supreme Court will agree that this is unconstitutional remains to be seen, but I wouldn’t hold my breath. After all, the right-wing justices upheld Arizona’s ludicrous ban on anyone dropping off ballots but their own, which was filed by Arizona Attorney General Mark Brnovich and another Republican election denier.
This ridiculous obsession with nonexistent ballot stuffing at drop boxes is what formed the so-called basis of the thoroughly debunked claims of fraud in Dinesh D’Souza’s “2000 Mules” movie, which has inspired millions of Trumpers to believe the 2020 election was stolen. These amateur surveillance efforts are being organized by a rogue’s gallery of right-wing groups with anti-government views and associations with white nationalism, including the Oath Keepers, True the Vote, Lions of Liberty and the Constitutional Sheriffs and Peace Officers Association.
You can always count on Arizona right-wingers to be in the vanguard of any innovative attempt at voter suppression and intimidation. They’ve been at this for decades and are way ahead of the rest of the country. They once put one of their own in the chief justice’s chair — and the current Supreme Court has their back all the way.
Vox looks at what the Constitution says about race
Ian Millhiser examines the fly Justice Ketanji Brown Jackson threw into Chief Justice John Roberts’s colorblind soup. That theory is at odds with the constitutional history the court’s “originalists” revere, Jackson pointed out in just her third case:
Roberts and his ideological allies derive the colorblindness principle from the 14th Amendment’s guarantee that all individuals will receive “the equal protection of the laws.” But Jackson explained that the framers of this amendment did not strive for colorblindness. Instead, they were “trying to ensure that people who had been discriminated against” — that is, formerly enslaved Black people — “were actually brought equal to everyone else in the society.”
And Jackson brought receipts. Among other things, she cited the Civil Rights Act of 1866, a law enacted by the very same Congress that wrote the 14th Amendment, which provides that all Americans shall have the same contracting and property rights as “white citizens,” and that any non-white person convicted of a crime shall be punished the same way as “white persons.”
The Congress that wrote the 14th Amendment, in other words, rejected the “colorblind” theory, and instead wrote a landmark civil rights statute that explicitly requires the government to consider race when deciding whether a non-white individual’s rights were fully respected. And the Civil Rights Act of 1866 is only one of many such laws enacted by Reconstruction-era lawmakers.
Millhiser adds that “the overwhelming weight of historical evidence suggests that Jackson is correct.” But Jackson’s receipts won’t change any minds on the court’s right (admitting mistakes being against conservative religion), but it will taint their further efforts to sell colorblindness to history. Justice Clarence Thomas, the court’s most outspoken opponent of affirmative action has made no effort to argue that colorblindness is consistent with the Constitution’s original meaning. Nor has Justice Antonin Scalia.
Several cases the court takes up this session involve the colorblindness question.
I want to be clear that the full story of how the generation that framed the 14th Amendment understood racial equality is far more nuanced than “they thought affirmative action was fine.” Many of their views on questions of race — and especially on public school segregation — are so wildly out of step with modern values that no justice embraces those views. And some prominent conservative originalists have poked holes in some of the originalist evidence supporting affirmative action.
But these same conservatives have barely even attempted to show that the Constitution, as originally understood, forbids affirmative action. In a world where Supreme Court justices decide cases based on their previously stated views about how the Constitution must be interpreted, the lawsuits challenging affirmative action should be doomed.
Even so, argues Millhiser, “no sensible person would want to live under the original understanding of the 14th Amendment.”
Equal treatment under law remains a contested concept all these years later, both in theory and in practice, as nationwide protests in 2020 illustrated.
Justice Ketanji Brown Jackson heard her first oral arguments before the Supreme Court on Tuesday. Merrill v. Milligan, a key voting rights case this session, arises from a “packing and cracking” challenge to Alabama’s redrawn congressional districts. Over a quarter of Alabamians are black. Yet legislators packed them into a single black-majority congressional distict of the state’s seven.
Jackson and the other two liberal women may have little power on the conservative court, but they mean to make noise about it, explain Dahlia Lithwick and Mark Joseph Stern for Slate:
All three of Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson brought the full force of history, text, original intent, and statutory purpose to the table during arguments about the enforcement of the Voting Rights Act—values the court’s conservatives purport to espouse. In so doing, they highlighted that the state of Alabama, aided and abetted by the court’s so-called textualists and originalists, are engaged in a radical project to engineer a new era of “race blindness” in voting that violates both the Constitution and the Voting Rights Act.
What conservatives mean to do is kill the Voting Rights Act by a thousand cuts, Justice Elena Kagan argued. The court excised Section 5 in Shelby County, promising Section would stand against voting rights violations. The in Brnovich v. DNC, the court assured the country that Section 2 would still provide protection the dilution of the votes of racial minorities. Now Alabama asks the court to eviscerate Section 2. Merrill could be the coup de grâce.
“You’re asking us essentially to cut back substantially on our 40 years of precedent and to make this, too, extremely difficult to prevail on, so what’s left?” Kagan told Alabama’s solicitor general, Edmund LaCour, Jr., who contends that redistricting must be done on a race-neutral basis.
Justice Jackson tells the Alabama solicitor general that the Framers of the 14th Amendment did NOT intend it to be “race neutral or race blind,” so taking race into account to protect minority voting rights is perfectly constitutional. Progressive originalism at work. pic.twitter.com/aCXAq2CnJu
Kagan also said that under existing precedents, Alabama could only prevail if the court ignored or overruled existing law. Of course, ignoring and overruling existing law is the raison d’etre for the new conservative supermajority, for which precedent is a mere annoyance on the way to its final destination.
Up next was Jackson, who cogently explained that the Alabama legislature’s claim in Merrill is itself rooted in a lie. The 14th Amendment and the Voting Rights Act both explicitly provide for race conscious measures to remediate historic efforts to suppress Black voters. It is not a race blind project and it never was; it wasn’t even intended to be. It is race-conscious on its own terms, and Jackson read from the contemporaneous reports at the drafting to make that very point.
Conservative justices might choose to ignore or distort history to disenfranchise minority voters, but not without the first black woman on the court highlighing “the absurdity of their anti-originalist convictions in a manner that’s perfectly legible to the public.” Jackson means to pull back their black robes to reveal what’s underneath.
Nothing about this looks like color blindness, or like post-racial America, or like neutral, color-blind computer-generated maps. It looks like the vestiges of white supremacy, elevated to a lofty principle of “color blindness” that itself smacks of white supremacy, as three women, two of whom are women of color, call it precisely that. In the midst of a raucous national referendum on the continued legitimacy of the court, perhaps the most important development is that the justices are letting us listen in to these conversations, in real time. The three liberal justices surely already know they will be dissenting for the foreseeable future. They’re focusing on using their voices. We should listen.
God help us when the conservatives get their hands on Moore v. Harper.
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Justice Jackson makes her mark right out of the box
Ketanji Brown Jackson is making her mark already in just two days of questioning. Here’s Sherrilyn Ifill’s live tweet on today’s Alabama’s gerrymandering case that hopes to finally end the Voting Rights Act. This is very “legalesque” but you’ll get the idea. Jackson is using their originalism to prove they are full of shit:
So important that Justices Kagan & Jackson are pulling the mask off of Alabama’s case. AL is in essence, relitigating Mobile v. Bolden, which resulted in Congress amending the Voting Rights Act in 1982 to ensure that a “results” rather “intent” is required for section 2 cases.
And even better that Justice Kagan re-upped the language in Brnovich in which Justice Alito in his haste to remake the “totality of circumstances” test of Section 2, conceded that “no one disputes” that intent is NOT required to prevail in Section 2 cases.
Justice Jackson has done her homework. She is all over Section 2, and relentless in questioning counsel for the state of Alabama. She knows where a proper Section 2 inquiry starts. And it’s not at “race neutrality.”
Justice Alito throwing counsel for Alabama a lifeline.
Kagan and Jackson have been so hot, I’d forgotten that Justice Sotomayor is just entering the fray. This is a hot bench. And given the blows landed, I expect that Alito and the other 5 conservatives will be very aggressive with the counsel for Black voters.
Wow. Justice Kagan gets to it. Asks if it would be possible for Alabama to create maps with no majority Black districts. Counsel for AL essentially says, “it depends on what Section 2 is trying to get at.” Just unreal. The purpose of the Voting Rights Act is not mysterious.
Kagan now holding a class on the Voting Rights Act: “one of the great achievements of American democracy.”
Counsel for Alabama is now distorting what “third generation” voting rights claims means. This is not that. This is a classic second generation vote dilution redistricting claim. Good grief.
Justice Kavanaugh hoping this case can be resolved on “compactness” grounds. Looking for a way to get the job done without getting his hands dirty with the straight-on grotesque business of gutting Gingles.
Justice Barrett giving counsel for Alabama another chance by laying out the argument that can win with this conservative majority. Step-by-step. “Isn’t that your argument?” Well, yes.
Whew. Justice Jackson went into the reports of the Commission on Reconstruction to make clear what the founders of the 14th amendment were trying to accomplish. Then offered a short survey course to AL counsel and the Court.
Giving them a little “history and traditions.”
Not sure I can live tweet Deuel Ross’s argument cause I just think he’s amazing and I need to just listen.
Ross not falling into the “max-Black” bait being dangled by Justice Alito. So fully conversant on all of the cases and all of the facts that he can’t be caught. This line of questioning reveals that it’s hard to find a legitimate way out on the facts of this case.
Ross doing law and reminding the Court that this case is up in the SCOTUS on a preliminary injunction (suggesting the inappropriateness of using this case to make sweeping changes to precedent).
No questions for Ross from Justices Thomas or Gorsuch on this first round.
In responses to Justice Kavanaugh is leaning in. Trust me: there is no lawyer more knowledgeable about Voting Rights Act case law than @RossDeuel. Period. And he’s serving it up. If you want to do violence to the VRA with Ross at the podium, you’re going to have go through it.
I am alternately preening and fanning myself like a proud mother. Whew!
Up now Abha Khanna. Brilliant opening.
Excellent answers by Abha Khanna. And it shows how important it is to have a strong district court opinion where the Gingles analysis is done carefully and exhaustively.
Justice Alito is belaboring these hypotheticals involving the use of computer simulations, and “unbiased mapmakers.” It’s a reminder that at his confirmation hearing he talked abt his father’s work as a legislative mapmaker in New Jersey.
Abha Khanna now brilliantly breaking down how even computer simulations are not “neutral” because they are programmed with assumptions, in response to a question by Justice Barrett. It’s clear that several justices are really hanging their hats on computer simulated maps.
Justice Jackson making sure to ask Abha Khanna to address the assumption underlying Justice Barrett’s question – that either Section 2 or the 14th Amendment requires race neutrality. And making it clear that neither do.
Abha Khanna says there is “no basis” for reading a computer simulation standard into the first Gingles factor.
SG Elizabeth Prelogar now arguing.
Justice Alito gets to it: where can the state win once plaintiffs have satisfied the first Gingles factor? Won’t plaintiffs “run the tables”? Wow. Maybe, he says, the majority (whites) votes as a block because of “ideology. They have different ideas abt what the govt should do.”
Important to note that @RossDeuel made clear that the record evidence shows that voting was racially polarized in elections involving both Democrats and Republicans.
Counsel for Alabama on rebuttal now having seen where this is going, “we’re not asking for Gingles to be overturned or changed in any fundamental way. We’re not saying that computer simulations are required.”
Ok, counsel for Alabama saying that the multi-factor Gingles test only provides evidence of “broad, societal discrimination” is laughable. It is explicitly a “searching, practical evaluation of the local political reality.”
It is such a breath of fresh air, seeing Justice Ketanji Brown Jackson say from the bench what the 14th Amendment actually says. “It’s not a race-blind remedy,” she says, in something of an understatement. But we can actually go well beyond this since so much of modern jurisprudence, mostly but not only from the right, is based not only on ignoring the context and plain text of the 14th Amendment but pretending that the real Constitution — albeit with some additions and fresh paint jobs — is the one finalized in the first Congress as the first ten amendments. The Civil War amendments are not only not race-blind. They reflect a larger realization and aim: that the whole state thing just hadn’t worked out.
The 14th Amendment creates something called citizenship of the United States with various rights or “privileges and immunities” that states cannot violate. It reaffirms that states are subordinate jurisdictions and implicitly that their function had been far more to create mischief than progress.
This is all gauzed over today with the political and judicial edifice we call “federalism,” largely though not entirely the work of the late-20th century conservative legal movement. It proposes a set of principles and historical claims under which the federal and state governments are designed to exist in a kind of balancing equipoise. But mostly this isn’t true. “Federalism” is to a great degree the product of a long and mostly reactionary clawing back of the power by the state governments. Not entirely. But mostly.
Madison and Hamilton had wanted to neuter the states back in the 1780s. But the need to get a big majority of the states to agree to adopt the constitution made that impossible. They had to settle for the constitution as agreed to.
It would be possible to argue that 150+ years since the passage of the Civil War amendments represents a cooling of the ambitions of the statecraft of the 14th Amendment and an effort to work out some equitable balance between localism and national power. There’s some truth to that. But that’s not an argument available to anyone who argues for originalism. With that you have to go back to what the Reconstruction Congress thought they were doing. And what they were trying to do was quite radical in the context of the 80 preceding years of American national history — indeed, quite radical in some ways in relation to today.
He’s right about this. It’s super interesting to see originalism debated in this way. My previous post about the North Carolina Independent State Legislature case in which Michael Luttig uses the right’s originalism to argue against their new novel theory designed to allow Republicans to steal elections is also super interesting. This is the new intellectual battleground with this right wing majority. Whether any of them care abojut intellectual consistency or are all just partisan hacks remains to be seen.
And it’s very nice to see the three liberals on the court join the fray with all intellectual guns blazing. They’re all brilliant.
For the past week, headline news has focused almost exclusively on the scenes of desperation and destruction left in the wake of Hurricane Ian. So most of us missed taking note of last Friday’s investiture of Justice Ketanji Brown Jackson, the first Black woman on the Supreme Court. She was sworn in last June so this was a formality, but it still carried the weight of history and the court was filled with political and judicial luminaries, including President Biden and Vice President Harris. It was by all accounts a moving ceremony. But considering all the turbulence on the Supreme Court right now, I have to wonder if Jackson might be having second thoughts.
Today is the first Monday in October, the first day of the new Supreme Court term — and the court is in crisis. According to the Gallup poll, its public approval ratings have never been lower, with 58% of Americans disapproving of how this court is handling its job. A good part of that can be attributed to the Dobbs decision overturning the right to abortion, which had been effectively enshrined in the Constitution for 50 years. That it came fast on the heels of two underhanded end-runs by the Republican-controlled Senate — blocking the nomination of Merrick Garland in 2016, and then jamming through Amy Coney Barrett in 2020 — made it all the more rank. The court’s right-wing majority couldn’t even wait another year or two, just for appearance’s sake.
Dobbs wasn’t the only case last term that exposed what partisan hacks the court majority have become. They also ruled that despite centuries of jurisprudence allowing the regulations of firearms, a New York state law requiring concealed carry licenses, on the books for more than 120 years, was somehow a violation of the Second and 14th amendments. In his majority opinion, Justice Clarence Thomas made it very clear that he didn’t hold with his former colleague Antonin Scalia’s view that the Second Amendment is not absolute when it comes to private ownership of guns.
And in case anyone thought the court might think twice about gutting the EPA in light of the planetary climate upheaval we now see unfolding every day, they did not. In another 6-3 opinion, justices denied the EPA the right to demand emissions caps as part of the Clean Power Plan, siding once again with red-state climate-change deniers and Big Energy interests.
All those opinions came virtually on top of each other at the end of the court’s spring term, and its approval rating sank precipitously right after that. But the more recent nosedive in public opinion is likely also connected to the fact that one prominent justice is married to someone who was heavily involved in the post-election Big Lie campaign, and perhaps with illegal attempts to overturn the election. Ginni Thomas, the wife of Justice Clarence Thomas, was interviewed last week by the House Jan. 6 committee, and reportedly said that she still believes the 2020 election was stolen. That all might be considered a case of very poor judgment by the spouse of a Supreme Court justice, if it weren’t for the fact that Thomas has refused to recuse himself from any cases pertaining to Donald Trump — and has consistently supported Trump in pretty much every instance. Furthermore, the public has gradually become aware that Thomas and the other justices aren’t required to adhere to any clear ethics rules or standards — because there aren’t any.
Chief Justice John Roberts and Justice Elena Kagan — the latter is among the three remaining “liberals” — have been obliquely arguing with each other about the court’s loss of prestige and legitimacy in various speeches they’ve given over the last few weeks. Roberts, a smart guy deliberately playing dumb, has wondered aloud why people might thing the court has become purely political just because they disagree with the outcome of certain cases. Kagan, meanwhile, has patiently pointed out that when the court starts overturning precedents one after the other after a dramatic shift in personnel, it might make people just a little suspicious that politics is at work. Here’s how Slate justice reporter and analyst Dahlia Lithwick put it:
[I]t is not that the public didn’t like the final score at the end of the term when the lights went out in June. The problem wasn’t just the losses; the problem was that [Roberts’] team moved the game to another field, then stole the ball and replaced it with a time bomb, then changed the rules, then lied about it, and then set the entire field ablaze. Now he wants everyone to shake hands and go home.
Unfortunately, they aren’t finished. Indeed, the right-wing justices and their allies are just getting started. If this term goes like the last one, get ready for the court to lose another 20 points in approval. It will hear cases on religion, free speech, LGBTQ rights, affirmative action and voting. It’s not hard to imagine where the right-wing majority that signed on to the Dobbs decision will go now that they’ve decided to let it all hang out.
The legal precedents on affirmative action were thought to be so firmly established, according to New York Times, that the late Justice Ruth Bader Ginsburg assumed the issue had been permanently settled. Apparently not. The court plans to hear two cases that could once again upend precedents in place for half a century. Then there’s Merrill v. Milligan, which is poised to destroy what’s left of the Voting Rights Act, and Sackett v. EPA, which is likely to further degrade the federal government’s ability to enforce clean water standards, meaning that what happened to the water systems of Flint, Michigan, and Jackson, Mississippi, could happen in your town as well. In the latest bogus “religious freedom” case, 303 Creative v. Elenis, the court may enshrine the right to discriminate against LGBTQ people on religious grounds.
Then we get to perhaps the most chilling case of all, Moore v. Harper, which aims to establish the “independent state legislature” theory as the law of the land, essentially giving any Republican legislative majority in a swing state the power to do whatever it chooses when it comes to elections — with no checks on its power, including from state courts, the governor or any other election officials. Let’s put it this way: If this had been in effect in states like Arizona, Michigan and Pennsylvania in 2020, it’s entirely possible that right-wing state legislators could have done exactly what folks like Ginni Thomas wanted them to do — refuse to count certain votes, or even appoint their own slates of presidential electors in defiance of the voters. And you don’t even want to think about what how creative they could get with gerrymandering districts so Republicans never lose.
So get ready. The Supremes are on a roll and it doesn’t look like they have any plans to “moderate” in light of the fact that the public now perceives them as nothing more than an enforcement arm of the Republican Party. Public opinion, in this case, isn’t wrong. Old-time conservative movement ideology may be widely unpopular these days, is firmly entrenched in the high court and they are making all their dreams come true.
