Sunday, August 9, 2020

For Justices, the Pandemic Is What It Is

          The White House and Congress combined last week to do little or nothing about the coronavirus pandemic. For its part, however, the Supreme Court stirred into action not to try to control the virus but to prevent a lower federal court from trying to combat it.

The Court’s worse-than-nothing action came in an interim order that blocked a federal judge’s injunction ordering the Orange County, California, sheriff to adopt stricter public-health protocols to limit coronavirus infection in the county’s jail. The order in <I>Barnes v. Ahlman</I>  to stay the district court’s May 27 injunction came on a 5-4 vote that pitted the five Republican-appointed conservatives against the four Democratic-appointed liberals.

The justices have been divided along partisan lines in dealing with the pandemic ever since the Court’s shameful decision on April 6 that overrode a judge’s decision to give Wisconsin voters more time to vote by absentee rather than risk their health by voting in person. The judge’s order in the Wisconsin case came only five days before the state’s April 7 election and thus went against the Supreme Court’s general rule against court-ordered changes in procedures shortly before an election.

The judge’s order in the Orange County jail case also went against the justices’ doubts about judicial micromanagement of conditions in prisons and jails. In issuing the injunction, however, Judge Jesus Bernal noted that the jail, with 3,000 detainees, had recorded 300 cases of coronavirus infection in the week before his order. Bernal credited testimony from inmates that the jail flouted social distancing guidelines by cramming inmates into buses for transport back and forth from the jail and allowing inmates to socialize in crowded dayrooms.

Bernal, appointed to the bench in 2012 by President Obama, is not the first district court judge to be wrist-slapped for trying to protect prisoners from the risk of COVID-19. A federal judge in Ohio issued orders on April 22 and May 19 that officials at the low-security federal prison in Elkton, Ohio, consider releasing medically vulnerable inmates or transferring them to another prison or home confinement.

Judge James Gwin, a Clinton appointee in his twenty-third year on the federal bench, acted after the Elkton Federal Correctional Facility recorded nine COVID-19 deaths in a short period of time. Lawyers from the American Civil Liberties Union told Gwin that one-fifth of the inmates at the facility had tested positive for the virus and that social distancing was “literally impossible” at the prison.

            In an initial action, the Court on May 26 rejected the government’s request to block Gwin’s order, but three conservative justices—Thomas, Alito, and Gorsuch—said they would have granted a stay. The government returned with a new application, docketed on June 1 as <I>Williams, Warden v. Wilson<I>. Acting on the application as supervising justice for the Sixth Circuit, Sotomayor stayed Gwin’s order on June 4 without referring the application to the full Court. Sotomayor gave no reason for granting the stay. None of the other justices commented by opinion pro or con.

            Two months later, Sotomayor issued a blistering dissent, joined by Ginsburg, in the Orange County jail case. The evidence, Sotomayor said, showed that the jail had been “deliberately indifferent to the serious risk COVID–19 posed to the health of its inmates.” In the face of that evidence, Sotomayor complained, the justices’ decision to stay Bernal’s order left the jail “to its own devices.”

            The justices had been similarly unmoved by the risks of coronavirus infection to Wisconsin voters in April. In that case, Judge William Conley expanded the deadline for mailing absentee ballots because of the crush of absentee ballot requests. The four liberal justices dissented from the decision in <I>Republican National Committee v. Democratic National Committee</I> to stay Conley’s order. In a sharply written dissent, Ginsburg argued that the decision would result in “massive disenfranchisement” of voters unwilling to put their health at risk by in-person voting.

The Court has shown no more concern for voters in subsequent cases. The Court on June 26 rebuffed a request by Texas Democrats to reinstate a federal judge’s order to allow expanded mail-in voting in the November election. Judge Fred Biery had ruled that the state was discriminating against younger voters by allowing no-excuse absentee voting by seniors but not by younger voters. The Court declined in <I>Texas Democratic Party v. Abbott</I> to lift the Fifth Circuit’s stay of Biery’s order, but Sotomayor issued a short statement urging the appeals court to rule on the “weighty” question well before the November election.

A week later, the Court on July 2 stayed a lower court’s order easing Alabama’s burdensome rules for voters to request absentee ballots. The four liberal justices dissented in <I>Merrill v. People First of Alabama</I>. Four weeks later, the Court on July 30 intervened on Idaho’s behalf in <I>Little v. Reclaim Idaho</I> to stay a judge’s decision to give the citizens’ group Reclaim Idaho more time to gather signatures to qualify an education funding initiative for the November ballot. The group had argued that social distancing guidelines were slowing the signature gathering process.

President Trump has been rightly lampooned since his comment to Axios reporter Jonathan Swan fatalistically accepting the deaths from the pandemic. “It is what it is,” Trump said, as though he is not the leader of the world’s most powerful nation. The Supreme Court itself is the most powerful court in the world, but the justices have shown no more inclination than Trump to deal with the virus with determination and resolve.

Saturday, August 1, 2020

As Defeat Looms, Trump Sows Doubts About Election

As the presumptive Democratic nominee for president, former vice president Joe Biden tweeted a warning on April 24 that he expected that Trump “is going to try to kick the election [and] come up with some rationale why it can’t be held.” The Trump campaign responded by accusing Biden of engaging in “incoherent conspiracy theory ramblings” and describing Trump’s poll-leading opponent as “out of touch with reality.”

Trump himself confirmed Biden’s warning in a tweet of his own last week [July 30] that repeated the president’s unsubstantiated warnings about mail-in voting and suggested delaying the Nov. 3 election. “With universal mail-in voting (not absentee voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”

Constitutional law scholars were quick to point out that Trump, as president, has no authority whatsoever to delay the election: the date is set by Congress, as the first Tuesday after the first Monday in November. Historians were equally quick to point out that the United States held the presidential election in 1864 as scheduled, with the nation engaged in civil war.

On Capitol Hill, Republican members of Congress for once found that Trump had gone too far. Trump’s enabler-in-chief, Senate Majority Leader Mitch McConnell, used an interview with a home-state television station to bat away any possibility of an off-schedule election. “Never in the history of the country, through wars and depressions and the Civil War, have we ever not had a federally scheduled election on time, and we'll find a way to do that again this November 3, ” McConnell told the interviewer from Louisville’s WNKY.

Steven Calabresi, a law professor at Northwestern University and a co-founder of the Trump-loving Federalist Society, went so far in an op-ed  for the New York Times as to label Trump’s suggestion “fascistic” and grounds for impeachment. Calabresi, who defended Trump during the impeachment, called for Trump to relent from the suggestion or resign.  

Several other Republicans followed McConnell’s example by similarly rejecting any likelihood of a delayed election, including the House GOP leader Kevin McCarthy. Those assurances are, to be sure, welcome, but they are not enough. Trump’s strategy is to sow doubts about an election that he is now on a path to losing, badly. Recall that even after winning the presidency by an Electoral College majority, Trump claimed, without any evidence, to have lost the popular vote to Hillary Clinton only because of illegal voting by illegal aliens.

Right now, Republicans need to be contradicting and correcting Trump’s lies about what are actually the minuscule risks of fraud in mail-in voting: only 143 prosecutions for mail-ballot fraud out of more than 250 million ballots cast in mail-in voting over the past 20 years, according to an article by Igor Derysh in <I>Salon</I>. With no evidence, Attorney General William Barr told the House Judiciary Committee that there was “a high risk” of fraud in mail-in voting in this year’s election, but he refused to endorse Trump’s suggestion that the election will be rigged. “I have no reason to believe it will be,” Barr said in reply to a Democratic lawmaker’s query.

It is a commonplace observation among democracy advocates that the critical test for an emerging democracy comes not in the first election, but in the next &#151; when the in-power party faces the reality of yielding power to the opposition. On that issue, the United States has a fairly good record but with a few blemishes. John Adams used the Alien and Sedition Acts to put some of his opponents in jail after winning the presidency in 1796. The New York Times’s Peter Baker noted, in a news analysis, some examples of sore losers in U.S. history: Andrew Jackson accused John Quincy Adams of gaining the presidency in 1824 on the strength of a corrupt bargain with the third-place candidate Henry Clay; Democrats mocked Rutherford Hayes as “His Fraudulency” after the Republican emerged as the winner after the disputed 1876 election.

To opposite effect, however, Al Gore, as the popular vote winner in 2000, stoically accepted the Supreme Court decision that cut off the recount in Florida. “While I strongly disagree with the decision,” Gore said in a televised address the next night, “I accept it.”

Whatever grousing there may have been about elections in U.S. history, never until now has a sitting president or a former president used the prestige of the office to fuel doubts about results after or much less before they are known. “I have never seen such an effort to sow distrust in our elections,” Michael J. Abramowitz, the president of Freedom House, a nonpartisan organization that promotes democracy around the world, told the Times’s Baker. “We are used to seeing this kind of behavior from authoritarians around the globe,” Abramowitz added, “but it is particularly disturbing coming from the president of the United States.”

Trump’s advisers have their work cut out for them in trying to convince Trump of the reality of what seems now as his likely defeat on Election Day. For the country’s sake, perhaps they can persuade him to leave quietly after the results are counted, but  that may be too much to hope for.

Sunday, July 26, 2020

On Trump, This Is No Time to Mince Words

      Donald Trump has benefited from a certain squeamishness among his opponents about labeling him for exactly what he is ever since Hillary Clinton declined during the 2016 campaign to call him a racist. The tell-all memoir from his niece Mary Trump now makes clear that, apart from his racist rhetoric and racist policies, Trump is in fact a racist, who casually uses the n word and anti-Semitic slurs in family settings.
      Trump benefited as well from a certain hesitation among his critics about labeling him as a fascist despite the evident elements of fascism in his campaign. Trump’s current policy of sending federal forces into Democratic-led cities demands labeling him for what he is. “I have held off using the f word for three and a half years, but there is no longer any honest alternative,” Robert Reich, the former Obama secretary labor, tweeted last month [June 2]. “Trump is a fascist, and he is promoting fascism in America.”
      Jennifer Szalai, a critic at The New York Times, noted Reich’s tweet in her recent review of books about fascism: On Tyranny by the Yale historian Timothy Snyder and How Fascism Works by Jason Stanley, a professor of philosophy at Yale and son of Jewish refugees from World War II. Szalai contrasted Reich’s tweet with the previous hesitation among Trump’s critics to describe him as fascist.
      “The word fascism is so loaded that even some of the president’s most vociferous detractors had long been reluctant to use it,” Szalai wrote. “Ever since Trump became the Republican Party’s standard-bearer in 2016, the term has been floated and then dismissed for being too extreme and too alarmist, too historically specific or else too rhetorically vague.”
      One dictionary defines fascism as “far-right, authoritarian ultranationalism characterized by dictatorial power, forcible suppression of opposition, as well as strong regimentation of society and the economy . . .” Certainly, Trump’s campaign harked to the kind of far-right, ultranationalism that Hitler and Mussolini espoused. He also displayed the same penchant for theatricality and violent thuggery that they wielded to gain power.
      John McNeill, a professor of history at Georgetown, was among the experts who noted the elements of fascism in Trump’s campaign before the election. Writing in The Washington Post three weeks before the election, McNeill listed, among other common attributes, Trump’s hypernationalism, militarism, glorification of violence, and leader cult. “Fascists,” McNeill noted, “always looked to a leader who was bold, decisive, manly, uncompromising, and cruel when necessary.”
      Behind in the polls and helpless against the coronavirus pandemic, Trump needs something to demonstrate his prowess as a leader. He turned to deploying federal forces in a number of Democratic-led cites in an effort, in his own words, to “dominate” cities supposedly beset by widespread anarchy and out-of-control crime.
      The National Guardsmen and Border Patrol agents dispatched, supposedly, to protect federal property may not be brown-shirted storm troopers, but dressed in camouflage with no IDs visible they are behaving more like Trump’s paramilitary wing than as professional law enforcement. In Portland, Oregon, for example, federal agents have been seen arresting protesters without cause and pushing them into unmarked vehicles. Christopher David, a Navy veteran, suffered two broken bones in his hand when an unidentified federal agent beat him with a baton after David had approached the line of officers to challenge them to obey the Constitution.
      For his part, Portland’s mayor Ted Wheeler describes the federales’ presence as worse than unhelpful: like pouring gasoline on a fire, he said. Wheeler himself succumbed to tear-gas early Thursday morning [July 23] after the feds released canisters of some irritating gas while the mayor was speaking with protesters. Wheeler told the crowd that the feds’ presence amounted to “an unconstitutional occupation,” according to news accounts.
     "The tactics that have been used by our federal officers are abhorrent,” Wheeler said. “They did not act with probable cause, people are not being told who they are being arrested by, and you've been denied basic constitutional rights.”
      The critics of Trump’s tactics include two of President George W. Bush’s former Homeland Security chiefs: Michael Chertoff and Tom Ridge. Chertoff described Trump’s tactics to the Washington Post’s Greg Sargent last week [July 22] as “very problematic" and "very unsettling."
      Appearing on the PBS NewsHour [July 23], Ridge likened Trump’s tactics to “a reality TV approach” unlikely to help local authorities resolve urban problems. The former Pennsylvania governor told moderator Judy Woodruff that there was “no conceivable scenario” in which he would have agreed to federal agents’ presence in cities without prior consultation with and agreement from the local authorities.
      As acting DHS secretary, Chad Wolf disavows any need to have local buy-in. “I don’t need invitations by the state,” he said on Fox News [July 20]. “We’re going to do that whether they like it or not.” Speaking to the New York Times columnist Michelle Goldberg, Snyder noted that authoritarian regimes such as Franco’s Spain and tsarist Russia also deployed border agents against domestic enemies. “The people who are used to committing violence on the border,” Snyder explained, “are then brought in to commit violence against people in the interior.”
      Even if the historical analogy is imperfect, Trump’s policies are fascist and no more than barely lawful. The time to mince words has long since passed.

Sunday, July 19, 2020

Religious Right Collects Its Payoff at Supreme Court

      The religious conservatives who traded their integrity for Supreme Court seats collected their payoff this term in the form of three decisions favoring their distorted vision of religious liberties. It was a Faustian bargain from the onset to support a presidential candidate who mocks Christian values on a daily basis but who promised to appoint judges and justices who would bow down to the evangelicals’ golden calf.
      The evangelicals traded away their integrity a second time when they provided critical support to Brett Kavanaugh’s confirmation as President Trump’s second Supreme Court justice after he was plausibly accused of attempted rape as a privileged teenager. With Kavanaugh anchoring the Court’s conservative majority, the Court engaged in a burst of judicial activism in the last few weeks to give religious schools and religious employers special rights to disobey validly enacted laws that the rest of use are obliged to follow.
      The trifecta of decisions belie the conservatives’ complaint that the Roberts Court has gone rogue with a few liberal decisions favoring LGBT rights and abortion rights and blocking Trump’s effort to rescind protections for “dreamers.” The back-and-forth debate about those decisions dominated the blogosphere even as the justices were drafting the end-of-term opinions giving the religious right almost everything it could have expected.
      Religious conservatives had weighed in with amicus briefs in all three cases. They kept their eyes on the prize even as most Court watchers were preoccupied with the Trump subpoena cases. In the first of the three decisions, the Court gave a windfall to private religious schools by overriding constitutional provisions in thirty-eight states that prohibit public funding of sectarian schools. The 5-4 decision in Espinoza v. Montana Department of Revenue [June 30] overrode the Granite State’s “no-aid” provision by holding, under the Free Exercise Clause, that the state’s scholarship program for private school students had to include religious schools.
      In his opinion for the Court, Roberts gave no weight to the state’s interest in avoiding entanglement with religion at the risk of Establishment Clause issues. The ruling cheered school choice advocates intent on keeping religious conservatives in their camp and conversely alarmed public school advocates fearful of further defunding of financially struggling public schools.
      A week later, the Court gave religious schools another windfall: a get-out-of-jail-free card in the form of a decision that largely exempts them from federal job discrimination laws. The 7-2 decision in Our Lady of Guadalupe School v. Morrissey-Berru [July 8] allowed two Catholic schools in the Los Angeles area to get out of federal court lawsuits filed by former teachers who said they were fired in violation of federal civil rights laws.
      One of the teachers claimed the school replaced her with a younger teacher in violation of the Age Discrimination in Employment Act; the other teacher claimed that her school let her go in violation of the Americans With Disabilities Act after she asked for medical leave to pursue treatment for breast cancer. Both schools cited deficient performance by the teachers, but rather than defend the suits in court they asked for immunity under a recent Supreme Court decision giving religious schools a “ministerial exception” for teachers in religion classes.
      The new decision expands that exception to include almost anyone that a religious school identifies as having a minister-like role at the school: athletic coaches, probably, and maybe even custodians. In her dissent, Sotomayor correctly said that the decision denies federal civil rights protection to “countless” numbers of religious school employees nationwide.
      The decision flagrantly disregards Jesus’s teaching on the relationship between religion and state, as quoted in Matthew 22:21: “Render to Caesar the things that are Caesar’s and to God the things that are God’s.” In his letter to the Romans, Paul similarly stressed that Christians enjoyed no superior rights to disregard the law. “Let every person be subject to the governing authorities,” Paul wrote in Romans 13:1.
     In the third of the decisions, the Court returned to the attack by religious conservatives on the Obamacare mandate that employers provide coverage for contraceptives in employee health benefits plans. The 7-2 ruling in Little Sisters of the Poor v. Pennsylvania expanded the exemption already created for private employers with religious objections to the mandate. In the new decision, the Court upheld a Trump administration regulation expanding the exemption to employers with either religious or moral objections to including contraceptives in their health benefit plans.
      All told, the decisions bear out the observation by the New York Times’ semi-retired Supreme Court correspondent Linda Greenhouse that Roberts is on a “mission” to rewrite religious liberty jurisprudence. The decisions, Greenhouse wrote in a recent article [July 16], amount to “insisting on organized religion’s entitlement to public benefits as a matter of equal treatment while at the same time according religion special treatment in the form of relief from the regulations that everyone else must live by. Benefits without burdens, equal treatment morphing into special treatment.”
      True, religious conservatives suffered a defeat in the ruling to extend Title VII to LGBT employees (Bostock v. Clayton County). In writing the opinion, however, Gorsuch made clear that employers with religious objections to hiring LGBT individuals are welcome to come back and claim a religious liberty to discriminate. Those claims are likely to find a receptive audience among the Roberts Court majority, in open mockery of the Court’s carved-in-marble motto: “Equal Justice Under Law.”