"Modi" Operandi

June 23, 2023

          On the day that President Biden avoided a half-hearted impeachment effort in the House, he hosted the Prime Minister of India, Narendra Modi (“Modi”). As of late Thursday evening, the visit appeared to be going according to plan. That plan involves maintaining relations with the most populous nation in the world while avoiding controversy over Modi’s record of suppression of the media, political opponents, and the Muslim minority in India. To complicate matters, India is the world’s largest democracy and sits astride US relations with China and Russia.

          Biden’s balancing act advances US strategic interests while undermining its commitment to promoting democracy over autocracy. Living with that unavoidable tension is the modus operandi of foreign relations. But we don’t have to like it. Indeed, that tension is the reason some Democrats walked out of the address by PM Modi to a joint session of Congress. See NYTimes, Biden Seeks to Bolster Ties With Modi While Soft-Pedaling Differences.

          As explained by the Times,

“In cultivating Mr. Modi, who before becoming prime minister was denied a U.S. visa because of his role in a deadly religious riot in his home state, Mr. Biden put aside his language about “democracy versus autocracy” being the defining struggle of his time. In his welcome remarks and the later appearance before reporters, Mr. Biden described the two countries as fellow democracies committed to universal values without directly mentioning the increasing suppression of minority groups and opposition voices in India.” [¶¶]

“Despite his warm greeting in the chamber, several liberal Democrats in Congress boycotted Mr. Modi’s speech. “A joint address is among the most prestigious invitations and honors the United States Congress can extend,” Representative Alexandria Ocasio-Cortez of New York wrote on Twitter. “We should not do so for individuals with deeply troubling human rights records.”

          Like President Biden’s trip to Saudi Arabia to meet with Prince Muhammed bin Salmon, I am disappointed that the US must deal with foreign leaders with records of political and human rights abuses. But I am not president and have the consequence-free discretion to insist on moral purity. President Biden does not.

          Given the situation in which he finds himself, President Biden has again risen to the occasion, acting as an experienced and mature statesman advancing the interests of the American people in the way he believes is best. But it is neither unpatriotic nor disloyal to disagree with Biden’s choices. Reasonable people can disagree in good faith over the proper course of action.

          Indeed, such disagreement is a healthy and necessary dynamic as we navigate choices bristling with tensions and trade-offs. While I would part company with President Biden on how Modi’s visit was handled, I remain grateful that he is making those difficult choices during this fraught time in our relations with China and Russia.

Another outrageous decision by the reactionary majority.

          The Supreme Court is nearing the end of the traditional period for releasing opinions on cases heard during the current term. On Thursday, the Court issued two decisions that show the continuing damage to the rule of law posed by the reactionary majority.

          In Jones v. Hendrix, Justice Thomas wrote for the six conservative justices in an opinion that effectively held that some federal prisoners who are innocent must nonetheless serve their entire sentence. See Ian Millhiser in Vox, The Supreme Court’s latest opinion means innocent people must remain in prison.

          The procedural and substantive legal questions in Jones v. Hendrix are excruciatingly complex. I will not cover those facts here but instead recommend Millhiser’s explication if you are interested. But in its simplest form, plaintiff Marcus DeAngelo Jones was found guilty of possessing a firearm after being convicted of a felony. Two decades later, the US Supreme Court issued a ruling that gave Jones a new defense to his conviction—a defense that could effectively mean that Jones was innocent of the crime for which he was imprisoned.

          Despite Jones’s potential innocence under the subsequent Supreme Court decision, Justice Thomas and reactionary colleagues ruled that Jones could not appeal his conviction because he had previously filed an appeal. In the reactionary majority’s view, prisoners get one shot at appealing their convictions. After that, new evidence or defenses are meaningless—even if they establish innocence.

          As explained by Ian Millhiser, the decision is the latest in a long-running disagreement between conservatives and liberals on the Court. Millhiser writes,

“Left-leaning justices have long argued that the criminal justice system should primarily try to determine whether a criminal defendant has actually committed a crime — and that there should be adequate safeguards to ensure that someone who is wrongfully convicted can challenge that conviction.

“Meanwhile, justices on the Court’s rightward fringe have long argued that the primary purpose of the criminal justice system is to reach final judgments concerning an individual’s guilt. Under this view, this need for finality can even overcome a claim that a prisoner is innocent. [¶¶]

“In Jones, Thomas does not simply repeat his philosophical commitment to finality in criminal convictions, he attributes that commitment to Congress — claiming that, by enacting AEDPA, “Congress has chosen finality over error correction.”

          The last highlighted phrase is key: For the reactionary majority, innocence is secondary to the judicial convenience created by iron-clad finality. The reactionary majority has turned the notion of fairness and due process on its head.

          In a second case, three members of the reactionary majority dissented from a holding that the President is the Commander in Chief of the Army and Navy. See Vox, The Supreme Court splits on whether Joe Biden is commander-in-chief. The case of Austin v. US Navy Seals presented the question of whether members of the military could refuse to follow a lawful command—to be vaccinated against Covid—on grounds of religious freedom.

          Justice Kavanaugh wrote an opinion that explained the basis of the majority’s ruling:

“In this case, the District Court, while no doubt well-intentioned, in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments. The [district court] relied on the Religious Freedom Restoration Act (RFRA). . . , But even accepting that RFRA applies in this particular military context, RFRA does not justify judicial intrusion into military affairs in this case. The Court “should indulge the widest latitude” to sustain the President’s “function to command the instruments of national force . . . .”

          Justices Alito, Gorsuch, and Thomas dissented. Alito wrote an opinion that would insert federal courts into every objection to a lawful order by a member of the armed forces on grounds of religious freedom. Alito would require military commanders to justify every order challenged on religious grounds by showing that there are no “less restrictive” means for carrying out the order.

          As explained by Millhiser,

“I want to emphasize the sheer enormity of what Alito is suggesting here. Once the Supreme Court permits a single servicemember to defy a direct order, that opens the door to any member of the armed services who disagrees with an order running to court to seek an exemption.

“Think of the kinds of orders that military personnel have to obey — “take that hill,” “guard this prisoner,” “cease fire.” . . . [Alito’s] dissent could effectively neutralize major military assets while religious liberty cases brought by service members are being litigated. Imagine, for example, if the captain of an aircraft carrier is ordered to deploy his ship close to Ukraine — but the captain refuses because, for religious reasons, that captain believes that Vladimir Putin should prevail in his war against Ukraine.”

          The nonsensical majority opinion in Jones v. Hendrix and dissent in Austin v. Navy Seals suggest that we may be in for a rough ride when the Court releases its opinions in two cases challenging the use of affirmative action in higher education. See Melissa Murray, Café, Note From Melissa: Waiting for a Blow (from SCOTUS). Murray’s article provides a detailed review of the history and background of the two affirmative action cases that will be decided before the end of June. (Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina have been consolidated for appeal.)

          I recommend Murray’s excellent analysis, but if you don’t have time to read it, we should prepare ourselves for the end of affirmative action. As Murray writes,

“[I] t seemed clear from oral arguments that the Court’s 6-3 conservative super-majority had some real doubts about affirmative action. Indeed, it seemed like the entire Court had resigned itself to the end of affirmative action as we know it—and the only real question was whether, and under what limited circumstances, race might be considered at all in higher education admissions decisions.”

          It is possible that the Court will again pull back from the worst it could do because of outrage over the decisions in Dobbs, Bruen, and Bremerton. But the holding and dissent in Jones v. Hendricks and Austin v. Navy Seals suggest that the reactionary majority is not dead yet.

Concluding Thoughts.

          Here is a funny but disturbing story. In yesterday’s newsletter, I wrote at length about Justice Alito accepting a free fishing trip to Alaska underwritten by billionaire Paul Singer that Alito failed to report on annual disclosure forms. Although I mentioned Alito’s name a dozen times, I inadvertently slipped and referred to Justice Scalia in the following sentence:

“In the latest instance, the Federalist Society hosted a fishing trip to Alaska underwritten by billionaire Paul Singer. Justice Scalia was provided free transportation on a private jet, free accommodation at a lodge, and free meals.”

          Here is the funny/disturbing part: The above sentence is 100% accurate regardless of which justice’s name is inserted—Alito or Scalia! Yes, that is correct: Paul Singer took Scalia on a free fishing trip to Alaska, just as he took Alito! See Los Angeles Times, Late Justice Scalia forged way for Alito, Thomas free trips.

          When corruption on the Supreme Court is so pervasive that you can freely substitute the names of justices and still get the story right, you know something is deeply, seriously rotten in the state of Denmark—and it isn’t the fish!

          There are undoubtedly more scandals to come. Although Republicans will never impose a mandatory ethics code on the Court, Democrats will do so the next time they control both chambers of Congress and the presidency. How’s that for motivation?

          I will send a short note in advance of the weekend to open the Comments section. Stay strong, everyone! Talk to you tomorrow!