Saturday, June 26, 2021

SCOTUS Is Not Donald Trump's Court

            In two checkered careers, Donald J. Trump has demanded complete loyalty from those around him – first, foremost, and always. Thus, it was no surprise that the former president voiced his disappointment with two of the justices he appointed to the Supreme Court after they cast pivotal votes this month [June 17] to spare Obamacare from being struck down.

The Court’s 7-2 decision in California v. Texas was not the first or even the most stinging of setbacks that Trump suffered from the Court over the past year after packing it with three doctrinaire conservatives: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett

“I am very disappointed,” the barred- from-Twitter former president said in an interview with the conservative outlet, Real America’s Voice on June 21, as reported  in The Washington Times. “I fought very hard for them, but I was very disappointed with a number of their rulings.”

Trump has been obsessed, Ahab-like, with trying to repeal Obamacare since before he ran for the presidency. The Trump administration Justice Department  supported Texas’s legal challenge to Obamacare despite the government’s presumptive responsibility to defend a federal law when challenged in court.

The Biden administration changed positions in February after the case had been argued. With new lawyers on the case, the government argued that even if the Court found the individual insurance mandate unconstitutional, the Court should remove that provision without invalidating the entire law as Texas and the Trump administration had urged.

The Court’s decision left the underlying issue unsettled, but instead dismissed Texas’s lawsuit outright on the ground that the red states had failed to prove the kind of concrete injury needed to establish legal standing to bring the suit.

Trump suffered two more personal setbacks earlier in the term when the justices simply refused to give full consideration to Trump’s improbable efforts to block the Manhattan district attorney from enforcing the subpoena for Trump’s tax returns and financial records or to overturn the presidential election.

The Court had ruled in the previous term that Trump, as president, could not claim immunity from a grand jury subpoena issued in a state criminal case. Trump’s two justices, Gorsuch and Kavanaugh, differed with the majority somewhat in proposing in a separate opinion a higher standard for the Manhattan district attorney to meet in order to enforce the subpoena.

Trump made his most audacious request to the Court by supporting the complaint filed by Texas and other Republican states, Texas v. Pennsylvania, that sought to overturn Joe Biden’s victories in four battleground states. The Court dismissed the complaint on December 11 with a single paragraph that found Texas had “no cognizable interest” in challenging election procedures used in other states.

Trump filed a motion to intervene in that case that was never acted on. But it has been learned since then that Trump in December instructed White House lawyers to draft a new complaint in the name of the United States, and send it to the Justice Department for filing. The acting attorney general Jeffrey Rosen let the draft complaint sit without filing it.

On rhe day of his inauguration as president, Joe Biden triumphantly declared that “democracy has prevailed.” Trump and his unhinged supporters continued to dispute the election results, going so far as to storm the U.S. Capitol on the very day that the Senate was to meet to confirm Biden’s election (Jan. 6).

With the Supreme Court’s 2020 term about to end, it can also be reported, triumphantly, that the rule of law has prevailed, despite Trump’s worst efforts. Even with three Trump justices on the Supreme Court, the former president can claim no significant victories over the past year. In another of the setbacks, the Court refused to reinstate Trump’s so-called “stay in Mexico” policy for asylum applicants after a lower federal court had ruled the policy illegal.

The Biden administration formally repealed the policy with the litigation still pending. Several red states sought to intervene in the case to try to salvage the policy, but the Supreme Court denied the motion.

Given Trump’s minimal understanding of separation of powers, Trump surely expected better rulings from the Court over the past year. But the Framers gave the Supreme Court a measure of independence for good reason and that independence has served the country well even if presidents must learn to live with disappointments.

Just ask Richard Nixon for one or Ronald Reagan for another. Nixon campaigned in 1968 on an anti-busing platform, but his chief justice, Warren E. Burger, led the Court just three years later – with Nixon in office, well before Watergate – in a unanimous decision that upheld the use of busing as a remedy in school desegregation cases.

Ronald Reagan campaigned on an anti-abortion platform and was out of office by the time when two of his justices, Sandra Day O’Connor and Anthony M. Kennedy, provided critical votes in 1992 for reaffirming the landmark abortion rights decision Roe v.Wade. [820]

Exiled in Mar-a-Lago, Trump can fret and fume about disloyal justices all he wants, but his words will not matter to the justices one whit. Before taking the bench, each of them solemnly promised to ‘administer justice without respect to persons and to do equal right to the poor and to the rich.”

The Trump-packed Court may yet do damage to the rule of law, but with one term almost completed the worst has yet to come to pass.

Saturday, June 19, 2021

On Terrorism, the Enemy Live Down the Street

             Forget al Qaeda! Forget Isis! If you’re worried about terrorism in the United States, the intelligence community assesses that the most serious threat comes not from brown-skinned foreigners, but from the unhinged white supremacist neighbors down the street. who plotted to kidnap the governor of Michigan or who stormed the U.S. Capitol on January 6 with baseball bats, bear spray, and other weapons to try to block Joe Biden’s election as president of the United States, and the racially motivated white guys who carried out deadly mass shootings over the past several years in Charleston, Pittsburgh, and El Paso.

            President Biden gave the intelligence community’s warning sufficient credence to direct his National Security Council to prepare a detailed plan to counter domestic terrorism. The “National Strategy for Countering Domestic Terrorism” opens by recalling the worst of the incidents from the past few years: the slaughter of black church members in Charleston by the young racist gunman Dylan Roof on June 27, 2015; the mass shooting at the Tree of Life Synagogue in Pittsburgh on Nov. 4, 2016; and the mass shooting of Latino customers by an anti-immigrant gunman at a Walmart in El Paso on Aug. 9, 2019.

The NSC document warns starkly that the United States faces “an elevated threat to the homeland in 2021” from so-called “domestic violent extremists (DVEs) who are motivated by a range of ideologies and galvanized by recent political and societal events . . .”

Attorney General Merrick Garland elaborated on the warning as he detailed the administration’s plan on Tuesday [June 18]. “In the FBI’s view, the top domestic violence extremist threat comes from racially or ethnically motivated violent extremists, specifically those who advocated for the superiority of the White race," Garland said.

The administration’s initiative represents a sharp break from the Trump presidency. Trump, after all, counted on support from these groups and even went so far as to encourage them when asked specifically about the Proud Boys group during the September 30, 2020, presidential debate. Federal law enforcement authorities have said they hesitated to go after domestic terrorists as long as Trump was in the White House.

Trump did not denounce the Proud Boys when asked in the presidential debate, but instead actually called on them for future help. He urged the group to “stand back and stand by.” Three months later, Proud Boys leaders and members were prominent in the Trump mob in the Jan. 6 insurrection at the Capitol. Some of them explained to reporters that they stormed the Capitol in direct response to Trump’s call to assemble in Washington and then to march to the Capitol.

It needs to be noted that we have seen this before, most dramatically perhaps in the post-Civil War Reconstruction. Disaffected white southerners formed the Ku Klux Klan to terrorize black citizens for exercising their rights to vote, run for public office, and serve for juries.

Congress responded by enacting the Enforcement Act of 1871 – commonly called the Ku Klux Klan Act –which made state officials liable in federal court for depriving anyone of the equal protection rights guaranteed by the Fourteenth and Fifteenth Amendments. The act also allowed the president to suspend the writ of habeas corpus to combat the Klan and other white supremacist organizations.

Unfortunately, the Supreme Court gutted the law in the most important test case to arise under the act. The government prosecuted nine of the white militia members who ousted the elected biracial government in Colfax, Louisiana, but the Court held in Cruikshank v. United States (1876) that the act could be enforced only against state officials, not against private actors.

The epidemic of more than 4,700 lynchings in the late 19th and through the 1930s was also racist-motivated domestic terrorism. The NAACP lobbied Congress hard to enact a federal anti-lynching law, but to no avail.

Some of the victims of 20th century domestic terrorism died not at the end of a rope but were killed through other means: Emmet Till, beaten to death in Mississippi on Aug. 28, 1955; and the civil rights workers Schwerner, Chaney, and Goodman, murdered and their bodies buried in an earthen dam in Neshoba County, Mississippi, on June 21, 1964.

The Biden administration’s plan uses bureaucratic gobbledygook to call for countering the “persistent” threat. “Addressing domestic terrorism effectively, responsibly, and sustainably demands forging a government–wide effort while protecting the rule of law and distinctive law enforcement prerogatives,” the plan states.

The plan includes cautionary language about protecting “our cherished civil rights and civil liberties.” But that has not stopped Fox News opinion-mongers such as Sean Hannity and Tucker Carlson from denouncing the plan as an effort to go after the Biden administration’s opponents in far right political circles.

The warnings, even if politically motivated, are not completely baseless. The FBI infiltrated and harassed left-wing political groups in the 1970s, at some cost to political liberties. Today, the COINTELPRO tactics of the earlier era are apt to be detected in real time and controlled by news organizations and advocacy groups more attuned to civil liberties violations than they were back then/

The United States has waged war on Islamist terrorism persistently and patiently over the past twenty years since 9/11. The war has achieved important results: Bin Laden is dead; Al Qaeda cells largely neutered in several countries.

The war on homegrown terrorists calls as well for patience, persistence, and bipartisan resolve. “This is project that should unite all Americans,” the NSC plan states. The plan offers no simple solution, but serves as a rallying cry for law-abiding Americans to join in trying to protect the homeland from the enemy within. As Walt Kelly’s Pogo remarked back in 1970, “We have met the enemy, and he is us.”

Saturday, June 12, 2021

Justices Slow to Take On Policing Issues

             More than a year after George Floyd’s deaths, the multipronged efforts to reform police policies and practices on use of force have produced only meager results, according to a comprehensive examination by reporters for The Washington Post. Even so, the U.S. Department of Justice and the various police departments that have re-examined their use-of-force policies deserve more credit than the Supreme Court, which has done literally nothing to address the various judicial doctrines that give police officers wider and wider leeway in use of force against civilians.

            In fact, the Court has been sitting for more than nine months on an appeal by the parents of a St. Louis man, who died in a St. Louis jail cell from prone restraint asphyxiation on December  8, 2015, after six police officers held him down until he suffocated to death.

            Nicholas Gilbert’s parents sued the city of St. Louis and the officers for wrongful death, but the federal appeals court for Missouri rejected their suit in an extraordinary decision in April 2020 holding that no reasonable jury could have found the officcrs’ actions to constitute “excessive force.”

            To the contrary, a reasonable jury in Minneapolis concluded a year after the Eighth Circuit’s decision that Derek Chauvin’s actions in George Floyd’s death – comparable to the St. Louis officers’ actions in Gilbert’s death – were not only excessive, but in fact criminal. Chauvin’s lawyer had cited the decision in his defense arguments.

            The Eighth Circuit’s decision in Lombardo v. St. Louis  – by a panel of three Republican-appointed judges – overlooked warnings from policing experts and the U.S. Justice Department dating at least from the 1990s about the risk of “compression asphyxia” from use of pressure on suspects held in prone restraint.

            Representing Gilbert’s parents, the Washington, D.C., civil rights attorney Jonathan Taylor urged the justices in September to hear their appeal to “send a message” about the dangers of leaving police officers and police departments free to engage in a restraint technique well known to be dangerous.

            Taylor went on to cite a compilation by reporters for USA Today showing that at least 134 people have died over the past decade from police officers’ use of prone-restraint techniques on suspects. Taylor, a lawyer with the well-known boutique law firm Gupta Wessler, cited as well a passage from an opinion by another federal appeals court that the “fact pattern” in Gilbert’s death “appears with unfortunate frequency in the reported decisions of the federal courts,” and “with even greater frequency on the street.”

            Taylor described the Eighth Circuit’s decision as “outlandishly wrong” and a candidate for “summary reversal” without full briefing and oral argument. He noted as well that the decision conflicts with rulings by several other federal circuits to have considered the same legal issue.

            More than two dozen “policing scholars” joined in an amicus brief also urging the justices to hear the case. “The Eighth Circuit’s decision is wrong,” they wrote in the brief, “and will be used to condone egregious exercises of force.”

            Despite the clear circuit conflict and the straightforward issue, the justices have yet to decide what to do about the case: to grant certiorari or to dismiss the appeal. The case has been relisted more than a dozen times for the justices’ case-selecting conferences, most recently on Thursday June 10.

            Midway through the 2019 term, the justices considered but rejected a handful of petitions urging them to rethink the use of the judge-made doctrine known as “qualified immunity” that often shields police officers from civil or criminal liability in excessive force cases. As the term was about to end, a team of five reporters with the Reuters news agency published a comprehensive examination of “qualified immunity” cases documenting the role that the fifty-year-old doctrine serves as “a highly effective shield” for cops accused of excessive force.

The Reuters reporters won recognition last week [June 10] not from the Supreme Court but from the committee that awards Pulitzer Prizes for journalism. The Pulitzer committee cited the report for “outstanding data analysis” by two of my Supreme Court press corps colleagues, Lawrence Hurley and Andrew Chung, and three Reuters data reporters: Andrea Januta, Jaimi Dowdell, and Jackie Botts.

The Court’s long delay in acting on the St. Louis case is not unusual. The Court was also slow over the past several months to take on two other hot-button issues: abortion rights and gun safety laws. After sitting on those two cases for months, however, the justices have now agreed to hear Mississippi’s effort to reinstate a law banning most abortions after the fifteenth week of pregnancy and to consider a gun rights group’s effort to strike down a New York law requiring a special need for license to carry a firearm in public.

The clamor for those cases came from the political and legal right, but the justices would do well also to heed the urgent calls from the political and legal left to re-examine police policies on use of force and to strengthen judicial accountability in regard to those policies.

At this writing, however, it appears that they don’t really care to try.

Saturday, June 5, 2021

We Still Don't Know Much About History

         Sam Cooke had a Top 40 hit back in the 1960s with a teenaged love song that began with the historic line, “Don’t know much about history.” Cooke’s lyrics went on to disclaim knowledge about other school subjects and ended with a hopeful profession of teenaged love: “But I do know that I love you, And I know that if you love me, too, What a wonderful world this could be.”

            In retrospect, Cooke’s title can now be seen as more true than recognized at the time. In fact, most high school students in the mid-20th century learned less than the whole truth of American history, thanks to a highly sanitized account of the central role of race throughout U.S. history.

In my case, I took American history in 1963 from a much beloved teacher, who is now widely believed to have been a devotee of the pro-Confederacy Lost Cause. Doc Holden once referred in the classroom to the “War of Northern Aggression”—a phrase that I regarded at the time as a joke rather than the serious pro-Confederacy view of the Civil War.       

I recall nothing from that course about slavery: the degrading daily lives and broken families of the enslaved or the brutal hardships of the Middle Passage. I do recall that the textbook treated the post-Civil War history according to the then-standard historiography that the North punitively installed corrupt and ineffectual  carpetbagger governments on the defeated southern states.

Only now, a half century later, have I learned the whole truth from Henry Louis Gates Jr.’s masterful account in Stony the Road: Reconstruction,
White Supremacy, and the Rise of Jim Crow (
Penguin Press, 2019). White southerners, fearful of being outvoted by black freedmen, ruthlessly devised clever tactics to prevent blacks from exercising their newly granted right to vote and, at least twice, in Colfax, Louisiana, and Wilmington, North Carolina, overthrew elected biracial governments by force of arms.

Unsurprisingly, I also learned nothing about the Tulsa Race Massacre, the unspeakable destruction of Black Wall Street in 1921 now being recalled in print and on the air on the centennial of the worst race massacre in U.S. history. The actor Tom Hanks, a history buff of sorts, also recalled just this week in an op-ed in The New York Times [June 5] that he learned nothing about the Tulsa race massacre in his high school history course.

Apparently, most Oklahoma high school students also learned nothing about Tulsa in their high school history courses either.

The various other white pogroms against black Americans from the 19th and 20th centuries also went unmentioned in my high school, as far as I can recall. Eugene Robinson, in his column in The Washington Post [May 31], aptly noted some of the other massacres, misleadingly described at the time as race riots: Atlanta, 1906; East St. Louis, 1917; Chester, Pa., 1917; and twenty U.S. cities in 1919, including Chicago and Washington, D.C.

Most of those episodes are news to me now, but I have seen historical markers in Washington detailing the attacks on black veterans in 1919 back home after surviving combat in World War I.

Even worse, I recall nothing from my American history course about the civil rights revolution, which was taking place right before our eyes in real time in the 1960s. I do not recall any account of Jim Crow Laws or the Supreme Court’s decision upholding those laws in Plessy v. Ferguson, even though the Supreme Court had overturned that decision only a decade earlier in the very year that I enrolled in a segregated elementary school in a white working-class neighborhood.

In the current “racial reckoning,” statues honoring Confederate generals and heroes are rightly being dismantled over the objections of conservatives who claim that history is being erased. In fact, the whole truth about U.S. history needs to be un-erased after too many decades of ignoring the shameful history of violence by white terrorists against black Americans.

“Critical race theory,” a bete noire for cultural and political conservatives, seeks to remedy this shortcoming by telling the true history of systemic racism in U.S. history from 1619 to the present day.

Robinson’s response is blunt and terse: “There are those who deny that anything called ‘systemic racism’ is a feature of the American landscape,” Robinson wrote in closing. “They should be aware that history tells a very different story.”

The Spanish philosopher George Santayana famously warned that those who cannot remember the past are condemned to repeat it. The challenge for Americans now is to learn the past, perhaps for the first time, and then to proceed from a deeper understanding of our checkered past to remedy the legacies that four centuries of racism have left for current generations to address and change.