A tactical retreat by the Supreme Court?

June 16, 2023

          A string of surprising Supreme Court decisions has caused some people (i.e., me) to wonder if the Court’s conservative majority is engaged in a tactical retreat to prevent further damage to the Court’s legitimacy. That is at least one possible interpretation of the Court’s sudden devotion to upholding precedent rather than applying “originalism” to rewrite the Constitution.

If that interpretation is correct—even in part—it should spur us to greater efforts to reform and enlarge the Court. Why? Because the reactionary majority may have changed course because it believed that the calls for reform are likely to succeed. If so, the worst thing we could do is to relent merely because the Court followed precedent in a handful of cases—something it should do in all cases.

          As background, recall that in three major cases— Dobbs (reproductive liberty), Bruen (concealed carry of handguns), and Bremerton (school prayer)—the reactionary majority overruled long-standing precedent and invoked free-ranging “originalism” to substitute their social and religious views for the text, intent, and rules of construction that have guided the Court for more than two centuries.

As the Court was ripping the Constitution from its moorings, members of the reactionary majority were busily engaged in transparent conflicts of interest, repeated omissions and misrepresentations on disclosure forms, and possible corruption.

          The backlash against the conservative majority’s lawless spree was swift, though it has taken time for the Court’s critics to gain widespread popular support for reform of the Court. But under the leadership of Senators Sheldon Whitehouse and Elizabeth Warren and Representatives Adam Schiff and Jamie Raskin, the effort has become serious and focused.

The outrage over the Court’s ethical lapses and Justice Roberts’ arrogant dismissal of that outrage was the tipping point. In a clear sign that Roberts was finally hearing the footsteps of history, he acknowledged in May that the Court was “continuing to look at things we can do” to address “issues of concern.”

          And then, as if by magic, the Court’s reactionary majority abandoned its judicial bromance with originalism and began applying precedent. Indeed, it not only began applying precedent, it began dissing litigants who invoked originalism to overturn precedent.         

          The sea-change at the Court involves three cases, including the vitally important Allen v. Milligan, in which Justice Roberts upheld Section 2 of the Voting Rights Act by pledging “a faithful application of our precedents and a fair reading of the record.” While it should not be noteworthy for a justice to make such a pledge, it was noteworthy for Justice Roberts to do so—because he was saving a statute that he almost succeeded in killing in Shelby County v. Holder.  

          The second case is Health and Hospital Corporation of Marion County. v. Talevski, in which Justice Ketanji Brown Jackson authored the majority opinion. Justice Jackson’s adherence to precedent aligns with her consistently superb jurisprudence, but she was able to convince four members of the Court’s reactionary majority to join her in the majority opinion—Roberts, Barrett, Kavanaugh, and Gorsuch.

          On Thursday, it was Justice Barrett’s turn to champion long-standing precedent over originalism in Haaland v. Brackeen. As explained by Ian Millhiser in Vox, The Supreme Court has started obeying precedents, for a change, Barrett gave a full-throated defense of precedent while dismissing calls to originalism:

Barrett faults the plaintiffs for “criticizing our precedent as inconsistent with the Constitution’s original meaning” without offering an “account of how their argument fits within the landscape of our case law.”

The Brackeen plaintiffs “frame their arguments as if the slate were clean,” she writes, adding that “more than two centuries in, it is anything but.”

But, as Barrett writes, “this argument runs headlong into the Constitution.” She quotes the Constitution’s Supremacy Clause, which provides that “the Laws of the United States . . .  shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” And then she concludes her very brief analysis of this anti-commandeering argument with three dismissive words: “End of story.”

          While the decisions in Milligan, Tavelski, and Brackeen are a welcome respite from the reactionary majority’s mission to implement the MAGA platform, those cases should do nothing to quell the calls for reform. If anything, the cases remind us of what a functioning and intellectually honest Supreme Court can look like. That reminder should provide greater motivation to see reform of the Court.

The next fight in the House.

          Amid the frenzy over the indictment of Trump, there has been a significant development in the post-debt ceiling deal follow-up in the House. To make a very long story short, the Freedom Caucus is still red-hot with anger at McCarthy for agreeing to suspend the debt ceiling in exchange for minor concessions by the Biden administration. After two weeks of internecine warfare in the GOP caucus, McCarthy now pledges to seek steep cuts in programs that he left untouched in the debt ceiling deal. See Semafor, One week after passing the debt deal, House Republicans say they may try to force through bigger budget cuts.

          If that sounds like House Republicans are trying to renege on the deal they made with Biden, Senate Republicans agree. When Senator Susan Collins learned that McCarthy was re-interpreting the spending caps to mean that Republicans could slash and burn, Senator Collins said, “I was surprised to hear the Speaker say that because this was always envisioned as a cap we would go up to.”

          The debt ceiling deal was not a “budget,” just a set of guidelines for a budget. The good news is that Republicans can no longer threaten a debt default as they tussle with Biden over spending levels for specific programs—which is why Biden’s ability to close the debt ceiling deal was such a significant achievement.

DOJ to scrutinize PGA merger with Saudi LIV golf.

          The DOJ has notified the PGA that it has opened an investigation of the proposed merger between the PGA and the Saudi-sponsored LIV golf. See HuffPost, Controversial PGA Tour Deal With Saudis Faces Scrutiny In Washington.

          Being told that you are the subject of a DOJ antitrust investigation is never good news. But members of Congress are outraged. Senator Wyden wrote to PGA CEO Monahan on Thursday saying that the proposed merger might threaten the PGA’s tax-exempt status as an amateur sports association. Ouch! If the PGA has to start paying taxes, it may go out of business!

DeSantis grovels before Elon Musk.

          Like other red states, Florida is doing its best to prevent car manufacturers from selling electric vehicles. This week, DeSantis signed legislation prohibiting “direct to consumer” sales of electric vehicles, a marketing approach that bypasses automobile dealerships. Elon Musk pioneered the “direct-to-consumer” approach and uses it exclusively to sell Tesla cars.

          So, one would think that the Florida legislation banning direct-to-consumer sales of cars would be bad news for Tesla. But you would be wrong—because the legislation exempts Tesla from the ban. See Business Insider, DeSantis Bans Direct-to-Consumer Car Sales, Leaves Tesla Exception.

As a result, large auto manufacturers like Ford, GM, and Chrysler are prohibited from selling electric vehicles directly to the consumer, while Tesla is free to do so. It is amazing what a presidential endorsement can buy in Florida!

What’s up with House Oversight Committee claims of a Biden bribery scandal?

          You may be trying to tune out GOP claims that there is an audio recording of Biden accepting a $5 million bribe. Such claims are completely baseless—so much so that even the Chair of the House Oversight Committee, James Comer, is trying to walk back those statements. But where is this chatter coming from and how can we rebut it?

          The short answer is this: Rudy Giuliani and others tried to convince bad actors in Ukraine in June 2020 to accuse Biden (or his son) of corruption in connection with the state-owned gas company, Burisma. Giuliana whipped up a lot of gossip among unsavory sources in Ukraine, who repeated that gossip to less unsavory sources, who reported it to credible sources, who repeated it to the FBI. The trouble with that chain of events is that it leads to credible sources repeating information that was fabricated for the purpose of slandering President Biden.

          Rep. Jamie Raskin is the ranking member on the House Oversight Committee, which is investigating the alleged bribery scheme. Raskin has viewed the document that is “proof” of a bribery scheme involving President Biden and released a statement that debunks the wild theories being trafficked by Republicans. The statement is here: Ranking Member Raskin’s Statement Following Review of Debunked FBI Tip.

          Rep. Raskin’s statement includes the following:

[H]ere are the facts:  the FD-1023 form, which we reviewed first-hand today, records what a Confidential Human Source told the FBI about conversations he had with individuals in Ukraine.  The source, who has been described as highly credible by the FBI, told the FBI he could not provide any opinion on the underlying veracity of the information provided by these Ukrainian individuals.

We now know what I had long suspected: that Chairman Comer’s subpoena is about recycling stale and debunked Burisma conspiracy theories long peddled by Rudy Giuliani and a Russian agent, sanctioned by former President Trump’s own Treasury Department, as part of the effort to smear President Biden and help Mr. Trump’s reelection campaign. 

          In other words, don’t lie awake at night worrying about this non-story. And if you hear or see someone promoting disinformation, refer them to Raskin’s statement.

Update on Trump’s criminal indictment as of Thursday evening.

          Trump is still under indictment.

          Judge Cannon is still the judge on the case.

Concluding Thoughts.

          “Lies, damn lies, and statistics.” So said neither Disraeli, Mark Twain nor Yogi Berra. But the statement is true, nonetheless. Democratic presidential candidate Robert F. Kennedy Jr. has been hyping a YouGov poll showing that his favorability ratings have increased to levels that rival those of President Biden.

While Kennedy is promoting a true statement of fact, it is misleading. Why? Because as explained by The Washington Post, Kennedy’s favorability ratings have been increasing among Republicans, a phenomenon which is a complete explanation for the overall increase in his ratings.

          When Kennedy’s favorability is measured among Democrats, Kennedy is among the least popular candidates in either party. See WaPo, Apply skepticism to both Kennedy’s and DeSantis’s favorability ratings. And when the same exercise is applied to DeSantis (i.e., favorability among Republicans only) the decrease in his favorability ratings is even steeper than the “overall” number that is reported by the media.

          My point is not to say that we can dismiss either Kennedy or DeSantis. It is to say that using “favorability ratings” as a surrogate for electoral support is weak (at best) and misleading (at worst).

          Here’s my takeaway: Do not fret over Biden’s favorability ratings in online polls. Favorability ratings for a sitting president act as a vessel into which voters pour their discontent about the world, politicians in general, and their lives. Biden is on a winning streak and is aided by a strong and improving economy. While there are challenges ahead for Biden, he is heading into campaign season from a position of strength. We can’t ask for much more than that!

          I will be in touch with a brief note tomorrow to open the Comments section. Have a good weekend, everyone!

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Postscript: On using “neither” with three items, see Neither - Merriam-Webster.