Appearance of impropriety.

August 1, 2022

          It is no secret that the Supreme Court faces a crisis of legitimacy. Last week, Justice Alito stoked that crisis by giving a speech in Rome that further eroded the Court’s legitimacy. Alito’s speech included remarks attacking UK Prime Minister Boris Johnson and Prince Harry, remarks that have generated headlines across the world. See, e.g.,  Stern and Lithwick in Slate, Alito's speech mocking foreign leaders also offered an offensive vision of religious freedom. But setting aside those remarks, Alito’s appearance was inappropriate on many levels. As the Court struggles to convince Americans that it is a neutral body dedicated to dispensing justice in a fair and impartial manner, Alito’s speech created the appearance of impropriety (at the very least) that justices of the Court should strive to avoid.

          Before turning to Alito’s remarks, it is worth noting that Alito’s speech was a robust defense of religious freedom in the face of societal secularization and political intolerance in some countries across the globe. There is, of course, nothing inappropriate with a discussion of those topics. But the forum and timing of Alito’s remarks converted generally acceptable remarks into “salt in the wound” of a deeply divisive and judicially suspect decision authored by Alito, Dobbs v. Jackson Whole Women’s Health.

          As noted in Stern and Lithwick’s article (above), Alito delivered his remarks in Rome at a conference hosted by the University of Norte Dame Law School’s Religious Liberty Initiative (the “RLI”). The RLI is an initiative of the ND Law School composed of law school faculty and outside advisors. Both the RLI and ND Law School faculty routinely file amicus briefs before the Supreme Court and did so in Dobbs.  Indeed, the legal outcomes promoted by the RLI and ND law professors have a nearly perfect record of being adopted by the reactionary majority on the Court.

          It thus appears that the briefs of the RLI and ND law professors have a strong influence on the Court’s reactionary majority. Was it appropriate for Justice Alito to appear before the RLI and the ND law faculty in Rome for his first public statement after Dobbs? The American public deserves better from Supreme Court justices.

          I assume, but do not know, that Justice Alito’s travel expenses and lodging in Rome were paid by the RLI or Notre Dame law school—as is customary for appearances by Supreme Court justices. Though customary, was it appropriate for Alito to accept reimbursement for foreign travel from an institute and a law school whose professors regularly appear before the Court—and did so in Dobbs? The American public deserves better from Supreme Court justices.

             And then there is the substance of Alito’s remarks. He argues that religion is under assault by secular and political forces and is, therefore, “worthy of special protection.” While that proposition can be debated by people of goodwill and differing viewpoints, it is shocking for a Supreme Court justice to make that assertion. Alito is frequently called upon to balance competing liberties protected by the Constitution. Announcing to a religious advocacy group that among the rights enumerated in the Constitution, religion is worthy of “special protection” appears to favor Alito’s personal religious beliefs above the civil liberties of other Americans. The American public deserves better from Supreme Court justices.

          In his defense of religion in his Rome speech, Alito said, “Religious liberty and other fundamental rights tend to go together.” Women who were just stripped of an existing constitutional right in Dobbs would beg to differ—especially where the primary difference between Roe and Dobbs is the religious affiliation of the justices in the majority. The American public deserves better from Supreme Court justices.

          I acknowledge that a good lawyer could (and probably will) mount a technical defense to Alito’s all-expense paid appearance before Notre Dame’s Religious Liberty Initiative in Rome only thirty days after members of that group were victorious in the Supreme Court. But even if Alito did not break the law (or provisions of a non-existent code of ethics for the Court), the American public deserves better from Supreme Court justices.

Ukraine.

          For the last month, domestic headlines have crowded out discussion of Ukraine in my newsletter. Readers have asked me to begin discussing Ukraine again. With so much ground to cover, I will make an overarching comment, make one recommendation for a resource to follow, and then resume regular commentary on the war in Ukraine.

          First, the most important development in the last six weeks is that Russia acknowledged that its goal in Ukraine is regime change. See South China Morning Post, Russia is now seeking regime change in Ukraine, Lavrov says as Moscow expands war goals. That acknowledgment by Russian Foreign Minister Lavrov contradicts every prior statement by Russia about the right to self-determination by the Ukrainian people.

         Second, I highly recommend The Institute for the Study of War / The War in Ukraine for comprehensive war coverage.

          Third, here is a reader’s summary of the status over the weekend:

• Putin signed a new naval doctrine making the U.S. Russia's main enemy and naval threat.

• The Ukrainians continue to hit and destroy Russian ammunition dumps in Kherson oblast, making more precarious the position of the Russian troops there. 

• The first dry cargo ship carrying Ukrainian grain to Turkiye may depart Odesa on Monday, 1 August. 

• 200 Russian marines reportedly have refused to return to the fight in Ukraine, according to Ukrainian intelligence sources.  Morale problems continue among Russian troops.

• The Ukrainian Navy denies striking the main Russian Black Sea naval base, Sevastopol, yesterday with a drone.  The Ukrainian Navy seems to suggest that the attack is Russian disinformation that was intended to provide an excuse for the authorities to cancel Navy Day festivities.

Manchin tries to convince Sinema to support Inflation Reduction Act.

          I can’t explain any of this, but Joe Manchin is now making public pleas to Kyrsten Sinema to join him in supporting the Inflation Reduction Act. See Talking Points Memo, Manchin Makes Public Pitch For Sinema To Get Behind Reconciliation Deal. Let’s hope Joe Manchin is successful!

The floods in Kentucky.

          The loss of life from the flash floods in Kentucky will continue to grow for weeks. Kentucky’s governor said, “We’re going to be finding bodies for weeks.” If you want to donate, Kentucky has established the Team Eastern Kentucky Flood Relief Fund.

          A special note to readers of the newsletter from Kentucky: I hope that you, your family, and your friends are safe. If you can, send an email or post a Comment reporting on conditions in Kentucky so that I can share with other readers.

No, Republicans aren’t going to amend the constitution in a “rogue constitutional convention.”

          Business Insider published an article over the weekend that repeats a favorite scare tactic of Democratic fundraisers: Republicans are planning on calling a “constitutional convention” at which they will rewrite the Constitution. See Business Insider, Inside Conservatives' Next Big Dream: a Constitutional Convention. I receive a worried email from a reader at least once a week on this topic, so let me make a few brief comments to help quell unnecessary anxiety.

          It is true that the states can call a constitutional convention. For that to happen, two-thirds of state legislatures would need to call for a convention—or 34 states. For an amendment to be enacted, three-fourths of the states would need to ratify the amendment—or 38 states. See The National Archives, Constitutional Amendment Process. Keep those numbers in mind: 34 states call a convention, and 38 states to pass an amendment.

          Currently, Democrats control one or both legislatures in 26 states, while Republicans control both chambers of the legislature in 23 states. See National Conference of State Legislatures, State Partisan Composition.

          So, if Republicans control 23 state legislatures, do they have the 34 votes necessary for states to call a constitutional convention? No. Not even close.

          If Republicans control 23 state legislatures, do they have the 38 votes necessary for state ratification of a proposed constitutional amendment? No. Not even close.

          Is it possible that Republicans could gain control of both chambers of 34 states--11 more than they now control? Or that they can gain control of both chambers in 38 states—15 more than they now control? Even if the former is in the realm of possibility, the latter seems remote.

          In short, assuming that the states call a constitutional convention and that 38 states ratify a proposed amendment, the amendment would likely have support from fifteen or more states in which Democrats control at least one chamber in the legislature. It is unlikely that any constitutional amendment with support from fifteen states controlled (in whole or part) by Democrats would be radical or reactionary.

          Pin this to your refrigerator for future reference.

Concluding Thoughts.

          Sometimes I feel like a lonely voice in the wilderness telling Democrats not to lose hope. I am gratified whenever a real journalist or commentator reinforces my views. Today, E.J. Dionne Jr. did so in his op-ed in WaPo, Opinion | In a normal year, the GOP should sweep. But 2022 isn’t normal.

          Dionne notes the media focuses incessantly on the unpopularity of Democrats—but never mentions that Republicans are even more unpopular with voters:

          If the public isn’t wild about Democrats, they like Republicans even less. That Pew survey found that 57 percent of Americans had an unfavorable view of the Democratic Party, but 61 percent had a negative view of Republicans.

          As Dionne notes, that same Republican deficit applies to Biden and Trump. Sure, Biden has 37% of people who have a “very unfavorable” view of the current president, but 46% have a very unfavorable view of former president Trump. Neither man’s name is on the ballot in 2022, but their policies and candidates are.

          As Dionne, notes, the only issue where a plurality of voters favors Republicans is the economy, while majorities favor Democrats on climate, health care, abortion, LGBTQ issues, and guns. That explains why Republicans want to talk only about the economy—to the exclusion of all else.

          So, I am not making up “just so” stories to make you feel good. We have a fighting chance. If you don’t believe me, read Dionne’s op-ed. Are we guaranteed to win? No. Will it be easy? No. Can you relax? No! As always, we have every reason to be hopeful, but no reason to be complacent!

          Talk to you tomorrow!