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mostlysignssomeportents · 6 months

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The conservative movement is cracking up

I'll be in Stratford, Ontario, appearing onstage with Vass Bednar as part of the CBC IDEAS Festival. I'm also doing an afternoon session for middle-schoolers at the Stratford Public Library.

Politics always requires coalitions. In parliamentary democracies, the coalitions are visible, when they come together to form the government. In a dictatorship, the coalitions are hidden to everyone except infighting princelings and courtiers (until a general or minister is executed, exiled or thrown in prison.)

In a two-party system, the coalitions are inside the parties – not quite as explicit as the coalition governments in a multiparty parliament, but not so opaque as the factions in a dictatorship. Sometimes, there are even explicit structures to formalize the coalition, like the Biden Administration's Unity Task Force, which parceled out key appointments among two important blocs within the party (the finance wing and the Sanders/Warren wing).

Conservative politics are also a coalition, of course. As an outsider, I confess that I am much less conversant with the internal power-struggles in the GOP and the conservative movement, though I'm trying to remedy that. Books like Nathan J Robinson's Responding to the Right present a great overview of various conservative belief-systems:

https://pluralistic.net/2023/02/14/nathan-robinson/#arguendo

And the Know Your Enemy podcast does an amazing job of diving deep into right-wing beliefs, especially when it comes to identifying fracture lines in the conservative establishment. A recent episode on the roots of contemporary right-wing antisemitism in the paleocon/neocon split was hugely informative and fascinating:

https://www.dissentmagazine.org/blog/know-your-enemy-in-search-of-anti-semitism-with-john-ganz/

Political parties are weak institutions, liable to capture and hospitable to corruption. General elections aren't foolproof or impervious to fraud, but they're miles more robust than parties, whose own leadership selection processes and other key decisions can be made in the shadows, according to rules that can be changed on a whim:

https://pluralistic.net/2023/04/30/weak-institutions/

Which means that parties are brittle, weak vessels that we rely on to contain the volatile mixture of factions who might actually hate each other, sometimes even more than they hate the other party. Remember the defenestration of GOP House Speaker Kevin McCarthy? That:

https://apnews.com/article/mccarthy-gaetz-speaker-motion-to-vacate-congress-327e294a39f8de079ef5e4abfb1fa555

Even outsiders like me know that there's a deep fracture in the Republican Party, with Trumpists on one side and the "establishment" on the other side. Reading accounts of the 2016 GOP leadership race, I get the distinct impression that Trump's win was even more shocking to party insiders than it was to the rest of us.

Which makes sense. They thought they had the party under control, knew where its levers were and how to pull them. For us, Trump's win was a terrible mystery. For GOP power-brokers, it was a different kind of a nightmare, the kind where you discover that controls to the the car you're driving in high-speed traffic aren't connected to anything and you're not really the driver.

But as Trump's backers – another coalition – fall out among each other, it's becoming easier for the rest of us to understand what happened. Take FBI informant Peter Thiel's defection from the Trump camp:

https://www.washingtonpost.com/technology/2023/11/12/silicon-valley-billionaire-donors-presidential-candidates/

Thiel was the judas goat who led tech's reactionary billionaires into Trump's tent, blazing a trail and raising a fortune on the way. Thiel's support for Trump was superficially surprising. After all, Thiel is gay, and Trump's running mate, Mike Pence, openly swore war on queers of all kinds. Today, Thiel has rebuffed Trump's fundraising efforts and is reportedly on Trump's shit-list.

But as a Washington Post report – drawing heavily on gossiping anonymous insiders – explains. Thiel has never let homophobia blind him to the money and power he stands to gain by backing bigots:

https://www.washingtonpost.com/technology/2023/11/12/silicon-valley-billionaire-donors-presidential-candidates/

Thiel bankrolled Blake Masterson's Senate race, despite Masterson's promise to roll back marriage equality – and despite the fact that Masterton attended Thiel's wedding to another man.

According to the post, the Thiel faction's abandonment of Trump wasn't driven by culture war issues. Rather, they were fed up with Trump's chaotic, undisciplined governance strategy, which scuttled many opportunities to increase the wealth and power of America's oligarchs. Thiel insiders complained that Trump's "character traits sabotaged the policy changes" and decried Trump's habit of causing "turmoil and chaos…that would interfere with his agenda" rather than "executing relentlessly."

For Trump's base, the cruelty might be the point. But for his backers, the cruelty was the tactic, and the point was money, and the power it brings. When Trump seemed like he might use cruel tactics to achieve power, his backers went along for the ride. But when Trump made it clear that he would trade opportunities for power solely to indulge his cruelty, they bailed.

That's an important fracture line in the modern American conservative coalition, but it's not the only one.

Writing in the BIG newsletter, Matt Stoller and Lee Hepner describes the emerging conservative split over antitrust and monopoly:

https://www.thebignewsletter.com/p/is-there-an-establishment-plan-to

Antitrust has been the centerpiece of the Biden Administration's most progressive political project. For the left wing of the Dems, blunting corporate power is seen as the necessary condition for rolling back the entire conservative program, which depends on oligarch-provided cash infusions, media campaigns, and thinktank respectability.

But elements of the right have also latched onto antitrust, for reasons of their own. Take the Catholic traditionalists who see weakening corporate power as a path to restoring a "traditional" household where a single breadwinner can support a family:

https://www.capitalisnt.com/episodes/when-capitalism-becomes-tyranny-with-sohrab-ahmari

There's another reason to support antitrust, of course – it's popular. There are large, bipartisan majorities opposed to monopoly and in favor of antitrust action:

https://d3nkl3psvxxpe9.cloudfront.net/documents/Antitrust_Policy_poll_results.pdf

Two-thirds of Americans support anti-monopoly laws. 70% of Americans say monopolies are bad for the economy. The Biden administration is doing more on antitrust than any presidency since the Carter years, but 52% of Americans haven't heard about it:

https://www.ft.com/content/c17c35a3-e030-4e3b-9f49-c6bdf7d3da7f

There's a big opportunity latent in the facts of antitrust's popularity, and the Biden antitrust agenda's obscurity. So far, the Biden administration hasn't figured out how to seize that opportunity, but some Dems are trying to grab it. Take Montana Senator John Tester, a Democrat in a Trump-voting state, whose campaign has taken aim at the meat-packing monopolies that are screwing the state's ranchers.

The right wants in on this. At a Federalist Society black-tie event last week during the National Lawyer's Convention, Biden's top antitrust enforcers got a warm welcome. Jonathan Kanter, the DOJ's top antitrust cop, was praised onstage by Todd Zywicki, whom Stoller and Hepner call "a highly influential law professors," from George Mason Univeristy, a fortress of pro-corporate law and economics. Zywicki praised the DoJ and FTC's new antitrust guidelines – which have been endlessly damned in the WSJ and other conservative outlets – as a reasonable and necessary compromise:

https://fedsoc.org/events/national-press-club-event

Even Lina Khan – the bogeywoman of the WSJ editorial page – got a warm reception at her fireside chat:

https://www.youtube.com/watch?v=0FwdAxOSznE

And the convention's hot Saturday ticket was "a debate between two conservatives over whether social media platforms had sufficient monopoly power that the state could regulate them as common carriers":

https://www.youtube.com/watch?v=rwoO7bZajXk

This is pretty amazing. And yet…lawmakers haven't gotten the memo. During markup for last week's appropriations bill, lawmakers inserted a flurry of anti-antitrust amendments into the must-pass legislation:

https://www.economicliberties.us/press-release/fsgg-approps-bill-must-support-enforcers-not-kneecap-them/#

These amendments were just wild. Rep Scott Fitzgerald (R-WI) introduced an amendment that would give companies carte blanche to stick you with unlimited junk fees, and allow corporations to take away their workers' rights to change jobs through noncompetes:

https://www.congress.gov/congressional-report/118th-congress/house-report/269

Another amendment would block the FTC from enforcing against "unfair methods of competition." Translation: the FTC couldn't punish companies like Amazon for using algorithms to hike prices, or for conspiring to raise insulin prices, or its predatory pricing aimed at killing small- and medium-sized grocers.

An amendment from Rep Kat Cammack (R-FL) would kill the FTC's "click to cancel" rule, which will force companies to let you cancel your subscriptions the same way you sign up for them – instead of making you wait on hold to beg a customer service rep to let you cancel.

Another one: "a provision to let auto dealers cheat customers with undisclosed added fees":

https://www.govinfo.gov/content/pkg/BILLS-118hr4664rh/pdf/BILLS-118hr4664rh.pdf

Dems got in on the action, too. A bipartisan pair, Rep Thomas Massie (R-KY) and Rep Lou Correa (D-FL), unsuccessfully attempted to strip the Department of Transport of its powers to block mergers, which were most recently used to block the merger of Jetblue and Spirit:

https://www.congress.gov/amendment/118th-congress/house-amendment/640

And 206 Republicans voted to block the DoT from investigating airline price-gouging. As Stoller and Hepner point out, these reps serve constituents from low-population states that are especially vulnerable to this kind of extraction.

This morning, Jim Jordan hosted a Judiciary Committee meeting where he raked DOJ antitrust boss Jonathan Kanter over the coals, condemning the same merger guidelines that Zywicki praised to the Federalist Society:

https://www.dropbox.com/scl/fi/7jxc8dp8erhe1q3wpndre/GOP-oversight-hearing-memo-11.13.23.pdf?rlkey=d54ur91ry3mc69bta5vhgg13z&dl=0

Jordan's prep memo reveals his plan to accuse Kanter of being an incompetent who keeps failing in his expensive bids to hold corporate power to account, and being an all-powerful government goon who's got a boot on the chest of American industry. Stoller and Hepner invoke the old Yiddish joke: "The food at this restaurant is terrible, and the portions are too small!"

Stoller and Hepner close by wondering what to make of this factional split in the American right. Is it that these members of the GOP Congressional caucus just haven't gotten the memo? Or is this a peek at what corporate lobbyists home to accomplish after the 2024 elections?

They suggest that both Democrats and Republican primary contesters in that race could do well by embracing antitrust, "Establishment Republicans want you to pay more for groceries, healthcare, and travel, and are perfectly fine letting monopoly corporations make decisions about your daily life."

I don't know if Republicans will take them up on it. The party's most important donors are pathologically loss-averse and unwilling to budge on even the smallest compromise. Even a faint whiff of state action against unlimited corporate power can provoke a blitz of frenzied scare-ads. In New York state, a proposal to ban noncompetes has triggered a seven-figure ad-buy from the state's Business Council:

https://www.timesunion.com/state/article/noncompete-campaign-raises-state-lobbying-18442769.php

It's hard to overstate how unhinged these ads are. Writing for The American Prospect, Terri Gerstein describes one: "a hammer smashes first an alarm clock, then a light bulb, with shards of glass flying everywhere. An ominous voice predicts imminent doom. Then, for good measure, a second alarm clock is shattered":

https://prospect.org/labor/2023-11-10-business-groups-reflexive-anti-worker-demagogy/

Banning noncompetes is good for workers, but it's also unambiguously good for business and the economy. They "reduce new firm entry, innovation by startups, and the ability of new firms to grow." 44% of small business owners report having been blocked from starting a new company because of a noncompete; 35% have been blocked from hiring the right person for a vacancy due to a noncompete. :

https://eig.org/noncompetes-research-brief/

As Gerstein writes, it's not unusual for the business lobby to lobby against things that are good for business – and lobby hard. The Chamber of Commerce has gone Hulk-mode on simple proposals to adapt workplaces for rising temperatures, acting as though permitting "rest, shade, water, and gradual acclimatization" on the jobsite will bring business to a halt. But actual businesses who've implemented these measures describe them as an easy lift that increases productivity.

The Chamber lobbies against things its members support – like paid sick days. The Chamber complains endlessly about the "patchwork" of state sick leave rules – but scuttles any attempt to harmonize these rules nationally, even though members who've implemented them call them "no big deal":

https://cepr.net/report/no-big-deal-the-impact-of-new-york-city-s-paid-sick-days-law-on-employers/

The Chamber's fight against American businesses is another one of those fracture lines in the conservative coalition. Working with far right dark money groups, they've worked in statehouses nationwide to roll back child labor laws:

https://www.epi.org/blog/florida-legislature-proposes-dangerous-roll-back-of-child-labor-protections-at-least-16-states-have-introduced-bills-putting-children-at-risk/

They also fight tooth-and-nail against minimum wage rises, despite 80% of their members supporting them:

https://www.washingtonpost.com/news/wonk/wp/2016/04/04/leaked-documents-show-strong-business-support-for-raising-the-minimum-wage/

The spectacle of Republicans in disarray is fascinating to watch and even a little exciting, giving me hope for real progressive gains. Of course, it would help if the Democratic coalition wasn't such a mess.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/11/14/when-youve-lost-the-fedsoc/#anti-buster-buster

Image: Jason Auch, modified https://commons.wikimedia.org/wiki/File:Antarctic_mountains,_pack_ice_and_ice_floes.jpg

CC BY 2.0

#pluralistic #trustbusting #antitrust #schisms #infighting #conservativism #millionaire on billionaire violence #jim jordan #lina khan #jonathan kanter #federalist society #trumpism #class struggle #labor

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porterdavis · 1 year

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#scotus #federalist society

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socialjusticeinamerica · 2 months

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Pay attention, these Koch and Walton funded groups are behind everything we resist.

#Koch network #oligarchs #cato institute #federalist society #illegitimate SCOTUS #Heritage Foundation #ALEC #republican assholes #never trump #traitor trump #crooked donald #Republican fascists #astroturf agents = fake grassroots campaigns

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liberalsarecool · 1 year

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Clarence and Ginni Thomas have destroyed every shed of their ethics.

#leonard leo #federalist society

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eternalistic · 9 months

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A pair of conservative legal scholars argue in a newly released paper that, under Section 3 of the 14th Amendment, former President Donald Trump is disqualified to hold office again, echoing a case long made by progressive experts and watchdogs.

In an in-depth analysis of Section 3, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas contend that the clause "remains of direct and dramatic relevance today"

The clause states that "no person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Only a two-thirds vote by both chambers of Congress can lift the disqualification.

In their new paper, Baude and Paulsen wrote that Section 3 of the 14th Amendment—known as the insurrection clause—is "self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress."

"It can and should be enforced by every official, state or federal, who judges qualifications," Baude and Paulsen argued, rejecting the notion that the First Amendment shields those who have engaged in or incited insurrection from disqualification under Section 3.

The clause, the pair added, "covers a broad range of former offices, including the presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election."

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oldshowbiz · 2 months

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The extremist takeover of the American court system, forty-five years in the making, has been a well-funded long game sustained by the enormous fortunes of the Olin Foundation, Scaife Foundation, and Bradley Foundation.

#think tank #federalist society #america

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contemplatingoutlander · 1 year

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The conservatives on the Supreme Court are behaving like autocrats now, vacating lower court rulings at will, without explanation. It is time that the country rise up and demand changes on how the Supreme Court operates. We cannot let 5 corrupt conservative justices have this much power.

Here are some excerpts from this opinion column:

The Supreme Court is increasingly setting aside legally significant decisions from the lower courts as if they had never happened, invalidating them in brief procedural orders. The pace of these actions has increased in the past 22 months, neutralizing important civil rights and civil liberties decisions.

Reasoned opinions by the federal appeals courts on issues ranging from voting rights to Donald Trump’s border wall have been wiped from the books, leaving no precedent for the lower federal courts to follow. Legally, it is as if these decisions by the appeals courts, one rung below the Supreme Court, had never existed. The Supreme Court’s final, unilateral exercises of power in these cases have gone largely unreported. [...] But when the Supreme Court vacates a lower court decision, that decision is erased, and any subsequent litigation on the issue must begin anew. Since January 2021, soon after Amy Coney Barrett took her seat on the Supreme Court, expanding the conservative majority, the court has relied on a 1950 decision to vacate 13 politically and legally significant decisions issued by federal appeals courts. That case, United States v. Munsingwear, held that when a case becomes moot during an appeal — meaning there is no longer a continuing controversy — the justices can vacate the decision with an order known as a vacatur.

The recent flurry of Munsingwear vacaturs is sharply at odds with the pace of past court practice. Since a 1994 Supreme Court decision scaled back the use of the Munsingwear precedent, the court has cited the case only 48 times to vacate lower court decisions, according to our research. Slightly more than half of those actions have occurred in just the past five years, after the appointment of Justice Neil Gorsuch, which maintained a 5-to-4 conservative majority. More than a quarter have come in the past 22 months, with the conservatives holding a 6-to-3 majority. [...] In 12 of the 13 lower court rulings vacated by the justices in the past 22 months, the court erased decisions that seemed to align with progressive values and objectives:

Two that granted standing to plaintiffs suing Mr. Trump for violations of the emoluments clauses by profiting from his hotels and restaurants.

One that held that Mr. Trump could not block critics on his Twitter account.

One that allowed states to be sued directly under the Voting Rights Act.

Two that allowed Pennsylvania election boards to count undated ballots or to extend mailing deadlines for ballots during the pandemic.

Two that tossed out work requirements approved by the Trump administration for beneficiaries to receive Medicaid.

One that held that the House of Representatives had standing to sue the executive branch for violations of its appropriations power in connection with Mr. Trump’s border wall.

One that prohibited the Trump administration from returning asylum seekers to Mexico under its Migrant Protection Protocols.

One that allowed the House Judiciary Committee to obtain redacted grand jury materials in its impeachment case of Mr. Trump.

One upholding a preliminary injunction against an executive order issued by the governor of Tennessee during the pandemic blocking abortion procedures for three weeks.

[,,,] In recent months, many scholars have noted the court’s seeming disregard for precedent in big, headline cases, such as its overturning of Roe v. Wade on abortion. In the months ahead, the court may well overrule other longstanding decisions. But at least in such cases, the justices will offer their reasoning.

#SCOTUS #us supreme court #us politics #federalist society #gop #scotus corruption #munsingwear vacaturs

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dontmeantobepoliticalbut · 8 months

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Vivek Ramaswamy has described himself as an “outsider”, accusing rivals for the Republican presidential nomination of being “bought and paid for” by donors and special interests.

But the 38-year-old Ohio-based venture capitalist, whose sharp-elbowed and angry display stood out in the first Republican debate this week, has his own close ties to influential figures from both sides of the political aisle.

Prominent among such connections are Peter Thiel, the co-founder of tech giants PayPal and Palantir and a rightwing mega-donor, and Leonard Leo, the activist who has marshaled unprecedented sums in his push to stock federal courts with conservative judges.

Ramaswamy is a Yale Law School friend of JD Vance, the author of the bestselling memoir Hillbilly Elegy who enjoyed success in finance before entering politics. At Yale, Vance and Ramaswamy attended what the New Yorker called an “intimate lunch seminar for select students” that was hosted by Thiel. Last year, backed by Thiel and espousing hard-right Trumpist views, Vance won a US Senate seat in Ohio.

Thiel has since said he has stepped back from political donations. But he has backed Ramaswamy’s business career, supporting what the New Yorker called “a venture helping senior citizens access Medicare” and, last year, backing Strive Asset Management, a fund launched by Ramaswamy to attack environmental, social and governance (ESG) policies among corporate investors. Vance was also a backer.

Ramaswamy’s primary vehicle to success has been Roivant, an investment company focused on the pharmaceuticals industry founded in 2014.

The Roivant advisory board includes figures from both the Republican and Democratic establishments: Kathleen Sebelius, US health secretary under Barack Obama; Tom Daschle of South Dakota, formerly Democratic leader in the US Senate; and Olympia Snowe, formerly a Republican senator from Maine.

Ramaswamy’s links to Leo – recently the recipient of a $1.6BN donation from the industrialist Barre Seid, believed to be the biggest ever such gift, but now reportedly the subject an investigation by the attorney general of Washington DC – are many.

As reported by ProPublica and Documented, Ramaswamy has spoken at retreats staged by Teneo, a group Leo chairs and which aims to connect high-powered conservatives, to “crush liberal dominance” in American life.

Other Teneo speakers have reportedly included Ron DeSantis, the Florida Governor polling ahead of Ramaswamy in the Republican primary, and the former South Carolina Governor Nikki Haley, who trails Ramaswamy and clashed with him on stage in Milwaukee.

ProPublica also linked Thiel to the genesis of the Teneo group. According to a document seen by The Guardian, Ramaswamy became a Teneo member in 2021.

Elsewhere, Ramaswamy is a board member of the Philanthropy Roundtable, a group with ties to Leo, and a member of the Federalist Society, the Leo-driven group which works to stock the courts with conservatives.

Ramaswamy has also spoken to and received an award from the State Financial Officers Foundation (SFOF), a group of Republican state treasurers.

In June, in South Carolina, the Post and Courier newspaper reported that last year, before launching his presidential bid, Ramaswamy attempted “to leverage his [Republican] connections to gain access [for Strive] to lucrative contracts to manage pension funds … [with] total assets of $39.6BN”.

Similar pushes were mounted in Missouri and Indiana, the paper said. Curtis Loftis, the South Carolina state treasurer, told the Post and Courier there was “nothing improper” about such approaches.

Asked about Ramaswamy’s claims to be an outsider in light of his links to rightwing donors, activists and establishment figures, a campaign spokesperson told The Guardian: “Vivek has lived the American dream and has had tremendous success in business.”

“There’s a colossal difference between someone who has friendships and business relationships with wealthy individuals and politicians who change their policies and positions to please their Super Pac donors,” they added.

In the Wisconsin debate, Ramaswamy flourished in the absence of Donald Trump, the former US president who faces 91 criminal charges but nonetheless leads Republican polling by huge margins.

Amid speculation that Ramaswamy might end up Trump’s running mate, Reed Galen, a Republican operative turned co-founder of the anti-Trump Lincoln Project, called Ramaswamy “a classic 2020s America tech bro bullshit artist … Trump for the 21st century”.

Ramaswamy’s claim to be an outsider, Galen said, was part of his “fundamental understanding … that MAGA [the pro-Trump Republican base] wants him to show that the rest of these people [in the primary] are politicians. He’s willing to be the showman … the outsider. Anti-establishment. ‘If anything is there, I dislike it because it’s there.’ You know, ‘I’m going to have fun with this. I’m not going to take it seriously because you’re a bunch of hacks and goons.’”

But in another sense, regarding Ramaswamy’s ties to the likes of Leo and Thiel, Galen said: “I think that he’s an insider.”

“He walks into a room with Leonard Leo and says, ‘What do you need me to do?’ … And they’re like, ‘Here’s what we want you to do. Here’s what we need you to do.’ Right?”

“Do I think [Ramaswamy] cares about [issues like restricting] abortion? No, not particularly. I don’t think he has a firmly held belief on it. But if he thinks that it will help him, and in exchange for that Leonard Leo will throw a little chicken feed of the $1.6BN that old man gave him, to help him? Sure, what the hell?”

“He didn’t ever think he’d get this far. So now he’s just gonna push it as far as he can.”

Ramaswamy, Galen said, was closely tied to a world of donors and non-profits in which Leo is “certainly at the center. And this movement only moves in one direction, and it’s toward the darkness. It’s towards authoritarianism. And it’s because it finds people like Ramaswamy. And the more that all these other candidates will now attack him, they will drive him further and further into the arms of those people.”

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odinsblog · 10 months

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When most people talk about expanding the Supreme Court, they're talking about adding a few Justices, two or four to the bench. But I am not most people. I do not think we should add a few Justices to get into an endless tit for tat with Mitch McConnell and his Federalist Society forces. I think we should blow the lid clear off this incrementally institutionalized motherfucker, and add 20 Justices.

I'd like to tell you about my Court expansion plan and explain why adding many Justices instead of fewer Justices is actually a better reform, fixes more underlying problems with the Court, and works out to be less partisan or political than some of the more incremental plans out there.

Let's start with the basics.

Expanding the number of Justices on the Supreme Court can be done with a simple act of Congress, passed by the Senate and signed by the President. Court expansion does not become easier or harder based on the number of Justices you seek to add to the Court. From a civics perspective, the process to add two Justices to the Court is just the same as the process to add 20.

Arguably, the rationale is the same too.

The current plan, supported by some Democrats, is to add four Justices to the Supreme Court. Their arguments are that the Court has gotten woefully out of step with the American people and the elected branches of government, which is true.

They argue that the country is a lot bigger now than it was in 1869, when Congress set the number of Supreme Court Justices at nine, which is also true. Basically, all of these arguments flow together into the catchphrase, “we have 13 Circuit Courts of Appeal, and so we should have 13 Justices.”

See, back in the day, each Supreme Court Justice was responsible for one lower Circuit Court of Appeal. Procedurally, appeals from the lower circuits are heard first by the Justice responsible for that circuit. But now we have 13 lower Circuit Courts of Appeal, meaning some Justices have to oversee more than one. If we expanded the Court to 13 Justices, we'd get back to a one to one ratio for Supreme Court Justice per Circuit Court of Appeal.

But it doesn't actually matter how many circuits each Justice presides over, because all the Justices do is move an appeal from the lower court to the Supreme Court for the full Court to consider whether to hear the appeal.

Their function is purely clerical.

It doesn't matter.

One justice could oversee all 13 circuits while the other eight went fishing, kind of like hazing a rookie on a team. And it wouldn't make a damn bit of difference in terms of the number of cases the Supreme Court hears. It's just a question of who has to work on Saturdays.

Indeed, I'm not even sure that I want the Court to hear more cases. These people are unelected, and these people already have too much power. More cases just gives them more opportunities to screw things up. I don't need the Court to make more decisions. I need the Court to make fewer shitty decisions. And for that, I need to reform how the Court makes those decisions. And for that, I need more people. And I need those people to make their decisions in panels.

Those lower courts, those 13 Circuit Courts of Appeal, almost all of them operate with more than nine judges. The 9th Circuit Court of Appeals has — wait for it — 29 judges!

All the lower courts use what's called a panel system. When they catch a case, three judges are chosen at random from all the judges on the circuit to hear the case. Those three judges then issue a ruling. If the majority of the circuit disagrees, they can vote to rehear the case as a full circuit.

The legal jargon here is called “en banc” when the full circuit hears the case.

But most of the time, that three judge panel ruling is the final ruling on the issue, with the circuit going en banc only when they believe the three judge panel got it clearly wrong.

Think about how different it would be if our Supreme Court operated on a panel system instead of showing up to Court knowing that six conservative Justices were against you, or the one or two conservative Justices that you invited onto your super yacht are guaranteed to hear your case.

You literally wouldn't know which Justices you'd get on your panel.

Even on a six-three conservative court, you might draw a panel that was two-to-one liberals, or you might draw Roberts, Kavanaugh, and Barrett instead of Thomas, Alito and Gorsuch, which could make a huge difference. Either way, you wouldn't know which Justices you'd get.

Not only does that make a big difference in terms of the appearance of fairness, especially in this time when some Justices are openly corrupt, it also makes a big difference in terms of what kinds of cases and arguments people would bring to the Court. Without knowing which Justices they'd get, litigants and red state attorney generals would have to tailor their arguments to a more center mass, mainstream temperament, instead of merely shooting their shot and hoping their arch conservatives can bully a moderate or two to vote with them.

Now, you can do panels with nine or 13 Justices, but you pretty much have to do panels with 29 Justices. Overloading the Court with Justices would essentially force them to adopt the random assignment process used by every other Court.

That would be good.

Sure, litigants could always hope for en banc review, where the full partisan makeup of the Court could be brought to bear. BUT, getting a majority of 29 Justices to overrule a panel decision requires 15 votes. Consider that right now you only need four votes, a minority of the nine member Court, to get the full Court to hear a case.

I'm no mathlete, but I'm pretty sure that 15 is just a higher bar.

That brings me to my next big point about expanding the Court to 29: Moderation.

Most people say that they do not want the Court to be too extreme to either side. Generally, I think that argument is bollocks. I, in fact, do want the Court to be extreme in its defense of voting rights, women's rights, and human rights. But maybe I'm weird.

If you want the Supreme Court to be a more moderate institution, then you should want as many Justices on the Supreme Court as possible. Why? Because cobbling together a 15-14 majority on a 29 member Court will often yield a more moderate decision than a five-four majority on a nine member Court.

Not going to lie. The law is complicated, and judges are quirky. If you invited five judges off the street over for a barbecue, they wouldn't be able to agree on whether hot dogs and hamburgers count as sandwiches.

It's simply easier to get five people to do something extreme than it is to get 15 people to do something extreme.

Think about your own life.

If you wanted to hike up a damn mountain, that is an activity for you and a couple of your closest friends. You're not taking 15 people to climb a mountain. That's not even a hike. That's an expedition, and you're expecting one or two of them to be eaten by bears on the way to the top. But if you're organizing an outdoor activity for 15 people, you're going to go to the park, and your friends will be expected to bring their own beer.

Most likely, adding 20 Justices would moderate the conservative majority just by putting enough people and personalities in the mix that it would be harder for them to do their most destructive work.

Just think about how the five worst senators you know, or the five worst congresspeople you can think of, often don't get their way because they can't even convince other members of their party to go along with their nihilist conservative ride.

Note, I said Conservative majority.

The astute reader will notice that I have not said that I want to add 20 fire-breathing liberal comrades who will stick it to Das Kapital for the rest of their lives. No, I believe the benefits of this kind of court expansion are so great — panels and the moderation from having more justices trying to cobble together en banc majority opinions — that I'd be willing to split the new justices ten and ten with conservative choices.

A 16-13 conservative leaning court would just be better than a six-three conservative court, even if my guys are still in the minority. The only litmus test I'd have for this plan is that all 20 have to be objectively pro-Democratic, self-government. All 20 have to think the Supreme Court has too much power. You give me 20 people who think the court should not be rulers in robes, and I'll take my chances.

However, there's no objective reason for elected Democrats to be as nice and friendly as I am when adding 20 Justices. Off the top, seats should be split eleven to nine, because Mitch McConnell and the Republicans must be made to pay for their shenanigans with the Merrick Garland nomination under Barack Obama. Republicans stole a seat. Democrats should take it back, full stop. I will take no further questions about this.

From there, this is where Democrats could, I don't know, engage in political hardball instead of being SAPS like always.

You see, right now, Republicans are dead set against court expansion because they are winning with the Court as it is. I can make all of the pro-reform, good government arguments under the sun, and the Republicans will ignore them because, again, they're winning right now.

But if you put forward a bill to add 20 seats, the Republican incentives possibly change: obstruct, and the Democrats push through court expansion on their own, and add 20 Justices of their own choosing, and you end up with people like, well, like me on the court. Or Mitch McConnell could release Senators to vote for the plan, and Republicans can share in the bounty.

It puts a different kind of question to McConnell: Join, get nine conservative Justices and keep a 15-14 conservative majority on the court, or Obstruct, and create a 23 to six liberal majority on the court, and trust that Republicans will take over the House, Senate, and White House so they can add 20 of their own Justices in the future.

Note that McConnell will have to run that whole table while overcoming a super liberal Supreme Court that restores the Voting Rights Act and strikes down Republican gerrymanders. Good luck, Mitch.

My plan wins either way.

Either we get a 29 person court that is more moderate, we get a 29 person court that is uber liberal, or McConnell does run the table and we end up with a 49 person court or a 69 person court. And while Republicans are in control of that bloated body, everybody understands that the Court is just a political branch there to rubber-stamp the acts of the President who appointed them.

Perhaps then, voters would start voting based on who they want to be in control of that court, instead of who they want to have a beer with.

The court is either fixed, or neutered.

It's a win-win.

I know 20 is a big number. I know we've all been institutionalized to believe that incremental change is the only change possible. And I know it sounds fanciful to ask for 20 when the starting offer from the establishment of the Democratic Party, the Republican Party, and President Joe Biden, is zero.

But like a doctor with poor bedside manner, I'm less interested in people's feelings and more interested in fixing the problem.

If you give me two Justices or four Justices, I can reverse a number of conservative policies that they've shoved through a Supreme Court that has already been illegitimately packed with Republican appointees. If you give me a few Justices, I can reestablish a center-left, pro-democracy majority… at least until those new Justices die at the wrong time, under the wrong president.

But if you give me 20 Justices, I can fix the whole fucking thing.

—ELIE MYSTAL, In Contempt of Court

#politics #elie mystal #scotus #court packing #packing the court #roberts court #john roberts #federalist society #the federalist society #republicans

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republicansaredomesticterrorists · 14 days

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These rotten motherf—kers need to be jailed!

😡🤬☠️

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mostlysignssomeportents · 1 year

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Clarence Thomas and the generosity of a far-right dark-money billionaire

Clarence Thomas has set some important precedents in his career as a Supreme Court justice — for example, the elevation of the unrepentant rapist Brett Kavanaugh to the bench could never have occurred but for the trail blazed by Thomas as a sexually harassing, pubic-hair distributing creep boss:

https://www.politico.com/news/magazine/2021/10/01/30-years-after-her-testimony-anita-hill-still-wants-something-from-joe-biden-514884

If you’d like an essay-formatted version of this post to read or share, here’s a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/04/06/clarence-thomas/#harlan-crow

Today, Thomas continues to steer the court into new territory — for example, he’s interested in banning same-sex marriage again:

https://www.politico.com/news/2022/06/24/thomas-constitutional-rights-00042256

And of course, he’s set precedent by hearing cases related to the attempted overthrow of the US government, despite the role his wife played in the affair:

https://www.npr.org/2022/03/30/1089595933/legal-ethics-experts-agree-justice-thomas-must-recuse-in-insurrection-cases

Thomas is not alone in furthering the right’s mission to destroy the morale of constitutional law scholars by systematically delegitimizing the court and showing it to be a vehicle for partisan politics and dark money policy laundering, but he is certainly at the vanguard:

https://pluralistic.net/2023/03/25/consequentialism/#dotards-in-robes

Today, Propublica published an expose on the vast fortune in secret gifts bestowed upon Thomas by the billionare GOP megadonor Harlan Crow, who is also one the most significant funders of political campaigns that put business before Thomas and the Supreme Court:

https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow

The story, reported by Joshua Kaplan, Justin Elliott and Alex Mierjeski is a masterwork of shoe-leather investigative journalism, drawing on aviation records, social media posts and other “open source” intelligence to expose the illegal, off-the-books “gifts” from a billionaire to an unaccountable Supreme Court justice with a lifetime appointment.

Here are a two of those gifts: a private jet/superyacht jaunt around Indonesia valued at $500,000; and a $500,000 gift to Ginni Thomas’s Tea Party group (which pays Ginni Thomas $120,000/year).

On top of that are gifts that are literally priceless: decades’ worth of summer vacations at Camp Topridge, Crow’s private estate, with its waterfall, great hall, private chefs, 25 fireplaces, thee boathouses, clay tennis court, batting range, 1950s-style soda fountain and full-scale reproduction of Hagrid’s hut.

Summer retreats to Topridge allow business leaders like Leonard Leo — the Federalist Society bankroller and mastermind who set Trump up to pack the Supreme Court — to coordinate in private with Thomas:

https://pluralistic.net/2020/09/29/betcha-cant-eat-just-one/#pwnage

They also allow top execs from PWC, Verizon and other corporations who may have business before the court to establish a warm, collegial relationship with a judge whose decisions can make billions for their employers. In its reporting, Propublica points out that Thomas got to hang out on Crow’s superyacht with Mark Paoletta, who was then general counsel for Trump’s OMB, and who has opposed any tightening of ethics rules for Supreme Court judges: “there is nothing wrong with ethics or recusals at the Supreme Court.”

Crow and Thomas also hobnob together at Crow’s Texas ranch, and at the Bohemian Grove, the Bay Area’s ultra-luxe retreat for rich creeps. Crow bought Thomas a private superyacht cruise through New Zealand, another through the Greek islands, and a river trip around Savannah, GA. He also traveled around the country on Crow’s private jet — even a short private jet trip is valued around $70,000.

Crow also makes many donations on Thomas’s behalf, from a $105,000 donation to Yale Law School for the “Justice Thomas Portrait Fund” to paying for a 7 foot tall, 1,800 lb bronze statue of the nun who taught Thomas in the eighth grade, which now stands in a New York Catholic cemetery.

This is without precedent. No Supreme Court justice in US history received comparable gifts during their tenure on the bench. Federal judges quoted in the story call it “incomprehensible,” noting that US judges bend over backwards not to owe anyone any favors, going so far as to book restaurant reservations without using their titles.

Virginia Canter, a former US government ethics lawyer of bipartisan experience said Thomas “seems to have completely disregarded his higher ethical obligations,” adding “it makes my heart sink.”

The Supreme Court’s own code of ethics prohibits justices from engaging in conduct that gives rise to the “appearance of impropriety,” but the code is “consultative,” and there are no penalties for violating it. But US judicial officers — including Thomas — are legally required to disclose things like private jet trips. Thomas did not. In general, justices must report any gift valued at more than $415, where a gift is “anything of value.” This includes instances in which a gift is given by a corporation whose owner is the true giver.

Crow is a Red Scare-haunted plutocrat who says his greatest fear is “Marxism.” He was a key donor to the anti-tax extremists at the Club For Growth, and has served on the board of the American Enterprise Institute — climate deniers who also claimed that smoking didn’t cause cancer — for 25 years.

Crow is a proud dark-money source, too, whose $10m in acknowledged donations to Republican causes and candidates are only the tip of the iceberg, next to the dark money he has provided to groups he declines to name, telling the New York Times, “I don’t disclose what I’m not required to disclose.”

Crow claims that the vast sums he’s lavished on Thomas — who, again, presides over the test cases that Crow is helping to put before him — are just “hospitality.” Crow called the private retreats with business leaders and top government officials “gatherings of friends,” and added that he was “unaware of any of our friends ever lobbying or seeking to influence Justice Thomas” while at his private estates or on his superyacht or private plane.

For his part, Thomas publicly maintains that he hates luxury. In a Crow-financed documentary about Thomas’s life, Thomas tells the camera, “I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it. I come from regular stock, and I prefer that — I prefer being around that.”

Judges often have to make determinations about conflicts of interest, and lawyers have an entire practice devoted to preventing conflicts from arising. I doubt whether Thomas himself would consent to have a dispute of his own tried in front of a judge who had received millions in gifts from his opponent.

The Supreme Court’s power comes from its legitimacy. The project of delegitimizing the court started with the right, and Democrats have been loathe to participate in any activity that would worsen the court’s reputation. As a result, the business lobby and authoritarian politicians have had free rein to turn the court into a weapon for attacking American workers, American women, and LGBTQ people.

It doesn’t have to be this way. When the Supreme Court blocked all of FDR’s New Deal policies — which were wildly popular — FDR responded by proposing age limits for Supreme Court judges. When the Supremes refused to contemplate this, FDR asked Congress for a law allowing him to appoint one new Supreme Court judge for every judge who should retire but wouldn’t.

As the vote on this bill grew nearer, the Supremes reversed themselves, voting to uphold the policies they’d struck down in their previous session. They knew that their legitimacy was all they had, and when a brave president stood up to their bullying, they caved.

https://theconversation.com/packing-the-court-amid-national-crises-lincoln-and-his-republicans-remade-the-supreme-court-to-fit-their-agenda-147139

The Supreme Court has moved America further away from the ideals of pluralistic democracy than we can even fathom, and they’re just getting started. They are taking a wrecking ball to the lives of anyone who isn’t a wealthy conservative, and they’re doing it while accepting a fortune in bribes from American oligarchs.

Have you ever wanted to say thank you for these posts? Here’s how you can: I’m kickstarting the audiobook for my next novel, a post-cyberpunk anti-finance finance thriller about Silicon Valley scams called Red Team Blues. Amazon’s Audible refuses to carry my audiobooks because they’re DRM free, but crowdfunding makes them possible.

Image: Mr. Kjetil Ree (modified) https://commons.wikimedia.org/wiki/File:US_Supreme_Court.JPG

CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0/deed.en

[Image ID: An altered image of Clarence Thomas, standing in gilded judicial robes on the steps of the Supreme Court. Looming over the court is a line-drawing of a business-man with a dollar-sign-emblazoned money-bag for a head.]

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