Real-world consequence.

July 6, 2022

          Over the past three decades, Justices Thomas, Alito, and Roberts protected the right of anti-abortion protesters to harass women entering medical clinics. Last month, those justices were joined by Kavanaugh, Barrett, and Gorsuch in protecting the right of every American to carry a weapon in public. Protesters have now gathered near the homes of justices to peacefully protest the decision in Dobbs.  Predictably, some protesters are armed—as is now their right under Bruen (allowing universal concealed carry for self-defense).

          The justices were offended and frightened by the sight of armed protestors near their homes. They apparently believe that the First and Second Amendments do not apply to protesters directing their speech toward the justices. So, the Marshal of the Supreme Court demanded that governors in Maryland and Virginia stop the peaceful protests. The request from a federal official demanding action by state law enforcement is, to say the least, irregular. But let’s put that problem of federalism aside for the moment and reflect on the irony of the request from the justices.

          One of the pro-Trump governors who received the demand from the Supreme Court Marshal responded by pointing out that his state lacked—wait for it—constitutional authority to stop the protests. See Joe Patrice in Above the Law, Supreme Court Officials SHOCKED To Learn That Supreme Court Rules Apply To The Supreme Court. As Patrice notes in his article, the Supreme Court Marshal did not act on her own; she was directed by a justice (or justices) who should have a passing familiarity with the Constitution.

          In Dobbs, Alito wrote that the Court could not—and should not—consider the real-world consequences of stripping women of the constitutional liberty to control their reproductive choices. (“This Court has neither the authority nor the expertise to adjudicate . . . conflicting arguments about the effects of the abortion right on the lives of women.”) Having turned their backs on the real-world “effects” of their decisions, the justices should not be surprised when their decisions puncture the comfortable bubble that typically insulates them from the chaos of “the little people” who must live under the scourge of the Court’s decisions.

          Every American is less safe and less free because of the Court’s decisions in the 2022 term. It will get worse unless we expand the Court. In 2015, Justice Thomas dissented from an action by the Court that upheld an assault weapons ban by the city of Highland Park—the site of yesterday’s mass shooting. Thomas described the AR-15 as a “modern sporting rifle” that many Americans “use for self-defense.” Recall that “self-defense” was the basis for the Court’s ruling that all Americans can carry concealed handguns in public. In 2015, Thomas was in the minority. Today, he leads the majority. Will he affirm the right of every American to carry an AR-15 in public? Let’s hope not—but hope is not a strategy.

          Perhaps the Second Amendment views of the justices will be affected by the sight of protesters carrying AR-15s for “self-defense” near the justices’ homes. To state the obvious, it is reprehensible for protestors anywhere to carry AR-15s, implying a threat of violence by their very presence. But that is the world the reactionary majority is creating for us. The killer in Highland Park used an assault rifle that he purchased legally despite numerous “red flags” indicating that he was unfit to own a gun. To Justice Thomas and his fellow reactionary colleagues, the killings in Highland Park are “collateral damage” to the right of Americans to own a “modern sporting rifle” for self-defense. Enough!

Trump racing Garland to the courthouse door?

          Whenever I criticize Merrick Garland for the slow pace of his alleged investigation of Trump’s crimes, readers remind me that indicting a former president is a momentous decision that should not be undertaken lightly. Perhaps the only decision more momentous would be indicting a former president who is also an announced candidate for the next presidential election. Trump has figured that out and is about to announce his 2024 candidacy soon. See Business Insider Former GOP House aide says Trump is likely to announce his 2024 presidential run soon because he 'has the impulse control of a freaking toddler'. (“[W]hen faced with the criticism that's been mounting right now, following the January 6 hearings, he's thinking about pulling the trigger now.”)

          Although an early announcement will complicate life for Merrick Garland, there may be two positive developments from an early announcement by Trump. First, it will place Trump on the ballot in every 2022 election at a time when his favorability is sinking. Second, Liz Cheney is signaling that she may challenge Trump in 2024 if he runs. Good! Her presence in the GOP primary will clearly contrast Cheney and Trump, DeSantis, Pence, Pompeo, Cruz, Rubio, Haley, Hawley, and the other cowards thinking about running for the GOP nomination. See Mother Jones, Liz Cheney Hints She Might Run Against Donald Trump in 2024.

Fulton County grand jury issued subpoenas to Trump attorneys and Senator Graham.

          The special grand jury in Fulton County, Georgia has issued subpoenas to Trump attorneys and South Carolina Senator Lindsey Graham. See Talking Points Memo, Atlanta Grand Jury Issues Subpoenas To Trump Legal Team, Lindsey Graham In Big Lie Probe. The Trump attorneys receiving subpoenas include Rudy Giuliani, John Eastman, Kenneth Chesebro, and Jenna Ellis. Senator Lindsey Graham received a subpoena relating to his efforts urging the Georgia Secretary of State to find a way to disqualify all of the ballots in two Georgia counties.

          This is good news. Trump's attorneys and political enablers seemed to act with impunity during the 2020 election, spreading wild lies with little concern for the consequences. Being called before a grand jury is a sobering experience and should cause each of them a moment of reflection if they attempt the same antics in 2024. And as an added benefit, some of them may go to jail!

          For Senator Lindsey Graham, the potential for criminal liability seems significant. After Georgia Secretary of State Brad Raffensperger described his call with Graham, the Senator denied he made the requests as reported by Raffensperger. The fact that Graham felt the need to deny statements he made to Raffensperger clearly indicates that Graham understands his potential criminal exposure. Good!

Re-reading Dobbs. It’s worse than I remember.

          I re-read the entirety of Alito’s majority opinion in Dobbs today (to find a one-sentence quote in the first story, above). After only two weeks, the opinion hasn’t aged well. On re-reading, I was struck (again) by the condescension, arrogance, and dismissive tone of Alito’s opinion. Those attributes have no place in an opinion by the Court, especially not on such a difficult and divisive issue. Many readers, especially women, tell me they cannot bring themselves to read the opinion. I don’t blame them. Alito adds insult to injury while gas-lighting women about the alleged nanny-state that will care for them and their babies.

          If you are interested in a professional and measured analysis of where the issue of reproductive liberty stands two weeks post-Dobbs, I recommend a paper by Mark S. Bergman, Abortion Politics 2022—One More Casualty of the Culture War.

Bergman looks at the opinion, its impact on a state-by-state basis, and (most importantly) what Americans can do to reclaim the liberties taken from women in Dobbs. Among the many actions Bergman recommends, he includes the following:

• Donate to funds helping people access care by providing financial assistance to patients in need. See, for example, the funds listed on the website.

• Donate to independent clinics through Keep Our Clinics.

• Donate to abortion advocacy groups such as the Center for Reproductive Rights, In Our Own Voice, NARAL, and Planned Parenthood Action Fund. See also the links to other reproductive freedom sites prepared by the ACLU (available here)

• Donate to the ACLU.

• To the above list, I add, Grandmothers for Reproductive Rights.

Concluding Thoughts.

          The initial reactions of Biden, Pelosi, and Schumer to the paradigm-shifting decisions of the last three weeks have been instinctively institutional. Many Democrats have been underwhelmed or upset by the muted and “on-second-thought” reactions that seem to lag behind the strong views of the American people. While we should recognize that the three Democratic leaders have limited options, that does not mean they should shrink from bold or imaginative ideas. Let’s hope they catch up to their constituents, soon.

          But nature and politics abhor a vacuum. Two governors have stepped into the breach in different ways over the last two weeks. See WaPo, As Democrats' impatience with Biden grows, some alternatives step up. Illinois Governor JB Pritzker’s unflinching condemnation of gun violence and congressional inaction on the day of the shootings was a welcome change from the “thoughts and prayers” response of many leaders. (“I’m furious. I’m furious that yet more innocent lives were taken by gun violence.”) And California Governor Gavin Newsom has launched an advertising campaign directed at citizens of Florida touting the freedoms of California. The ad (running in Florida) says, in part:

I urge all of you living in Florida to join the fight [for freedom]. Or join us in California — where we still believe in freedom. Freedom of speech, freedom to choose, freedom from hate and the freedom to love. Don’t let them take your freedom.

          If DeSantis is the 2024 GOP nominee, whoever the Democratic opponent needs to be taking notes from Newsom’s playbook. DeSantis’ politics are vulnerable and should be attacked head-on.

          I mention Pritzker and Newsom not because I am touting either for 2024, but because they illustrate that the Democratic Party has great depth. Think back to the 2020 Democratic debate stage and you will recall there were ten Democrats on that stage ready to be president. Add Pritzker and Newsom—if Biden chooses not to run. I know I will get some white-hot emails from readers for raising this subject, but it is one that Biden needs to address as soon as the 2022 midterms are over. I am a big fan of Joe Biden’s, but he needs to stop being reactive and force others to react to his initiatives. The good news is that Republican missteps and cruelty are creating opportunities for Democrats every day. We should take them for all they are worth!

          Talk to you tomorrow!