You’ll recall that in the last session, Texas passed another stupid law, trying to make it illegal to take down inflammatory and false rhetoric from social media platforms.  They were targeting Facebook and Twitter, which, after years of comatose moderation FINALLY started taking down posts from white supremacists, insurrectionists, QAnon enthusiasts, and other weirdos pumping manure to the public.  The court blocked the law in a mixed opinion with the liberal justices, except for Kagen, plus Roberts making the ruling with the conservatives (and Kagen) voting no.  It was a relief, but it’s not over as the court sent the case back to the courts.

But that’s not the interesting part.  What’s interesting was Alito’s dissent.  He took the same side that he did in the Texas Bounty law on abortion, wanting to have a clearly unconstitutional law stand while it wound its way through the courts; but this time he said that the court will have to visit this case at some point. In his opinion he said:

“This application concerns issues of great importance that will plainly merit this court’s review,” he wrote. “Social media platforms have transformed the way people communicate with each other and obtain news. At issue is a groundbreaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”

I agree that laws like this that threaten what little is left of civility in public debate are important, but I find it interesting that Alito is most concerned about social media moderation but is OK with taking away the right to vote and women’s rights to choose their own healthcare, while at the same time taking a completely hands off approach to gerrymandering, the greatest clear and present danger to the survival of our democracy.

The court’s problem is much larger than this particular opinion, and adds fuel to the fire that millions of Americans see the court now as illegitimate; I most certainly do, especially after the latest Trump/McConnell court packing that’s happened over the last decade.  The conservative super majority is cemented in now for future decades and that was accomplished by McConnell’s blatant cheating seeking retribution for Bork’s rejection by Democrats decades ago.  The court has transformed our country from a teetering and weak democracy to an oligarchy that protects the rich at the cost of everyone else.  The court now rules almost 90% in favor of corporations and has completely failed at its main responsibility, protecting the rule of law.

I don’t see that changing anytime soon.

It’s now been a week since the communications office of the Supreme Court announced that Clarence Thomas had been hospitalized “for an infection” and that he would go home in a few days.  That few days has now expanded to a full week, and repeated attempts by the press to get more information on him have been met with silence.  This is one of the most odd set of circumstances about the health of a SCOTUS justice that I can recall, especially after the detailed blow by blow reporting from the court about Ruth Bader Ginsburg’s health in the few years before she passed away in 2020.

Coincidently, news is breaking daily about the deep involvement of Thomas’ wife, Ginni, in the effort to overturn the US presidential election in order to illegally keep Trump in office after he lost.  It turns out that not only did she attend the “Stop the Steal” rally on January 6th, she communicated extensively with Mark Meadows and others in the conspiracy to overturn the election by amplifying lies about non-existent voter fraud.  Apparently there were 29 texts between them from the election to January 10, 2021.  She also communicated with other like minded folks in Trumpland including Jared Kushner.

Not coincidently, Justice Thomas voted against the other 8 justices when the court refused to intervene in the order to release Trump’s WH records.  He also wrote a dissent when the Court declined to hear the Pennsylvania case that was seeking to disqualify mail-in ballots in that state.  Ginni Thomas also publicly supported expelling Liz Cheney and Adam Kinzinger from the RNC when they voted to impeach Trump in the second impeachment and then joined the January 6th Committee.  In her texts to others in Trumpland, she also repeated QAnon bullshit conspiracy theories, loudly proclaiming the election was stolen and supporting the lawyers spreading the lies.  Worse, she has Justice Thomas’ ear 24/7/365 and even mentioned to Meadows in one text that she was talking to her “best friend” about how the election was stolen.  Not coincidently, her “best friend” has ruled 100% in Trump’s favor in cases brought before him.

The stink of the Thomases’ corruption just adds to the existing stench of the cheating and partisanship that has finally overtaken the Court since McConnell successfully stole Merrick Garland’s seat and then rammed through the nominations of Kavanaugh and Barrett, clearly unqualified nominees.  The Court has been rapidly undoing decades of precedent in many areas with particular focus on taking away a woman’s right to seek her own healthcare and making it harder for non-Republicans to vote.  John Roberts has been concerned about the eroding public confidence in the Court, and with good reason.  In a recent Gallup survey, confidence in the Court has declined to a low point of 40%.  Twenty years ago, confidence was as high as 62%.

Is it merely coincidence that Justice Thomas has suddenly dropped off the face of the earth as the scandal of his wife’s deep involvement in the insurrection comes to light?  I think not.  I wouldn’t be surprised to see a sudden retirement from the bench to avoid what looks to be the first impeachment case built against a SCOTUS justice.  Nothing else explains the deafening silence about Thomas’s supposed health problem and hospitalization.  We’ll be watching this one closely.

Justice Sonia Sotomayor couldn’t have said it better.  Trump’s and McConnell’s packing of the SCOTUS has now successfully destroyed all hope of the judicial branch protecting our Constitution and the rights it enshrines for all Americans.  Yesterday, the court inexplicably allowed Texas’ game playing with legislation to, as Sotomayor accurately described it,

“…the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review.” and “…the Court effectively invites other States to refine S.B. 8’s model for nullifying federal rights.”

The court left the law in effect, denying a Constitutionally protected personal right for all women in Texas to control what happens to their own bodies.  Gorsuch’s ruling was so badly constructed by his concocted rationalizations that states have now been provided a roadmap for nullifying any Constitutional right they don’t like.

With the court’s ruling, it’s time to now to test this rewriting of US law by turning the tables by legislating private enforcement against other constitutional rights.  How about a law against individual gun ownership?  Example: anyone caught carrying a firearm, whether licensed or not, can be sued by any individual with a minimum $10,000 award to the plaintiff.  How about a law that bans wearing of MAGA hats?  How about personal enforcement by lawsuits against those who discriminate against minorities like LGBTQ individuals, African Americans, and other racial minorities?  The list is endless where states can simply nullify any federally protected individual right by delegating enforcement of laws against those rights to individuals.  Vigilantism can now displace our entire constitutional judicial system and over 200 years of case law that protects it.

The US is inexorably sliding into a post-democracy era where governments are ineffective at protecting personal rights, allowing one class of Americans to force their belief system onto everyone else.  With compromise no longer possible in our political system, aided by the complete disassembly of our court system, the exclusive right to make policy will fall to the party in control.  Texas is the perfect example of this warping of our political system where the governor, aided by the courts and a single party controlled legislature, is now simply a dictator, nullifying local government’s efforts to protect its own citizens through his arbitrary orders while hiding in the governor’s mansion.  He’s now protected not only by non-existence of corruption laws, but by the SCOTUS itself.

Our only hope of blunting this nullification of individual rights is for states like California, New York, Delaware, and others to take advantage of this activist court’s new legislation from the bench by hitting the very people trying to take away our rights by taking away theirs.  How about a law that allows individuals to sue Fox News every time Tucker Carlson tells a lie?  Yeah, that’s the ticket.  Let’s hit ’em where it hurts.

File under: He Didn’t Really Say That, did He?

Yesterday, Flyin’ Ted decided it was time to demonstrate his total lack of self-awareness by holding a press conference in front of the Supreme Court alongside Lindsey Graham to complain about…wait for it…court packing.  During his diatribe, Cruz even said, “You didn’t see Republicans when we had control of the Senate try to rig the game.  You didn’t see us try to pack the Court,” which is precisely what we saw in 2016 and again in 2020 when Moscow Mitch brazenly blocked Obama’s nominee, Merrick Garland, replacing him with Trump’s nominee, Neil Gorsuch, then Frat Boy Brett Kavanaugh, and then ramming through Trump’s nomination of Amy Coney Barrett to take RBG’s seat only days before Trump’s defeat at the polls.  As a measure of the backlash of Cruz’s declaration, Merrick Garland immediately began trending on Twitter as Cruz was mocked for his idiotic declaration.

The Republicans have been packing federal courts for years, especially after McConnell triggered the nuclear option on Trump’s nominees for federal courts.  The GOP voters are so focused on court packing that they tolerate deplorables like Trump, Jordan, Gaetz, Gohmert and a plethora of other politicians simply because of their efforts to maintain an iron grip on the courts to cement in their power through gerrymandering and voter suppression.  The only way to stop it is to increase the seats on the Supreme Court and implement term limits.  Until then, partisans on the federal bench will be disrespected by half of Americans.  When a legal layman like me can predict with virtual certainty how the Supreme Court will rule on controversial cases you know that the court has been most certainly politicized, and that’s not healthy for any society, especially ours.  It’s time for that to stop, if for no other reason than to shut Flyin’ Ted’s mouth.

Last week during a speech at Harvard Law School Justice Stephen Breyer warned that “packing the court” by expanding it could erode confidence of the American people in the judgements of the courts.  When I read this my first reaction was that my confidence in the judgements couldn’t be any more eroded, especially after the Heller decision which overturned more than a century of precedent regarding gun safety laws, Citizens United which stupidly claimed that money doesn’t corrupt, Shelby which struck down key protections of the Voting Rights Act, and lately Knight which dismissed the case against Trump for banning critics on his Twitter account even though he used that account for public policy making.

Yesterday EJ Dionne called out Breyer for his position, correctly criticizing him for blaming the wrong side for politicization of the court.  Dionne pointed out the above cases and McConnell successfully stealing a seat when he refused to give Obama’s nomination of Merrick Garland to fill Scalia’s seat in 2016 and rushing Amy Coney Barrett’s nomination just a few days before the 2020 election that Trump lost.

Breyer is fantasizing about what the court should be rather than what it’s become, a tool for cementing in extreme rightwing ideology.  Biden is correct to open a commission about the court, and I believe it’s long past time to increase the size of the court to balance its judgments.  A better solution would be to establish term limits for SCOTUS seats, but that is more difficult due to the Constitutional arguments for not have limits.

All that said, it’s long past time to fix the Supreme Court, because what we have now is clowns in charge of the circus, and that damn sure doesn’t give any confidence in its judgements.

Today during Trump’s WH briefing campaign rally he threatened to use a never used presidential power to adjourn Congress.  He threatened this so he could ram through dozens of recess appointments with weirdos and incompetents.  Recall that Congress started never recessing as a tool to keep Barack Obama from doing recess appointments.  Also recall that Obama went to the Supreme Court to get a ruling on that practice…he lost.  Anyone want to bet that the Roberts Court will rule the same against Trump?  I wouldn’t hold my breath since we now live in Trumpland.

American rule of law is dead.