Today’s Edition: A shift in the constitutional firmament.

December 13, 2021

          [The audio version of this newsletter is here.]

          My prior analysis of the Supreme Court’s decision in Texas v. Whole Woman’s Health fell short. I should have opened my analysis with the following statement: On Friday, the Supreme Court effectively overruled Marbury v. Madison.  It is a truly breathtaking development with staggering implications. Let me explain.

           The Constitution establishes the federal judiciary in Article III. From the outset, it was clear that the Supreme Court had the authority to resolve cases arising under the laws of the United States. But it was not clear for the first decade of our republic whether the authority of federal courts included the power to review and invalidate laws that contravened the Constitution. In Marbury v. Madison, Chief Justice Marshall recognized the doctrine of “judicial review”, i.e., the authority to strike down laws that violate the Constitution.  Marshall reasoned that the federal courts must have that power, otherwise “courts must close their eyes on the constitution and see only the law.”

           Mark those words well: Federal courts have the power to invalidate laws that violate the Constitution, “otherwise the courts must close their eyes on the Constitution and see only the law.”

           That is exactly what the reactionary majority did last Friday. It shut its eyes to the Constitution and addressed only the legal gymnastics employed by the Texas legislature to evade judicial review. In looking only to the Texas law and not the Constitution, the majority abandoned the doctrine of judicial review established in Marbury v. Madison. True, the law at issue in Marbury was enacted by Congress not a state legislature, but the principle is the same. In allowing the patently unconstitutional Texas law to evade judicial review, the Court allowed Texas to define what rights are recognized under the Constitution. Texas claimed for itself the authority to say what the law is—in violation of the other fundamental holding of Marbury v. Madison, that “It is emphatically the province and duty of the Judicial Department to say what the law is.”

           Surprisingly, much of the mainstream press focused on the legal gymnastics of the majority’s opinion about which plaintiffs can sue which defendants. That analysis matters not a whit. Before the Texas lawsuits can make their way back to the Supreme Court, Roe v. Wade will be a distant memory—and the Texas anti-abortion law will be unnecessary because there will be no right to abortion. Texas’s legislature can simply ban it outright.

          The implications of effectively overruling Marbury vs. Madison are staggering. If Texas can evade judicial review over an unconstitutional law banning abortion, can California evade judicial review over an unconstitutional law banning assault rifles? We are about to find out. On Saturday, California Governor Gavin Newsom announced that he ordered his staff to draft legislation banning assault rifles. California’s prior law banning assault rifles has been ruled unconstitutional. So, California will draft another version of a law already declared unconstitutional; but the new law will evade judicial review by copying the stratagems employed by Texas.

          While some may applaud California’s tactic, it signals “open season” on constitutional rights that were previously protected by the Supreme Court. Four more states are busy enacting Texas-style abortion bans. What is next? Laws prohibiting efforts to get out the vote? Or that prohibit political demonstrations in public spaces? Or that punish speech that criticizes the governor of a state? In their effort to overturn Roe, the reactionary majority has imperiled all rights protected by the Bill of Rights and the Fourteenth Amendment.

          Of course, it is possible that the Court will find a way to say that California’s Texas-style approach to banning assault rifles can be blocked while the Texas law banning abortion was beyond judicial review. Indeed, I expect that to happen. As I wrote on Friday, we are entering an era where rights that align with a conservative religious agenda are treated according to one set of rules, while rights that do not align with that agenda are treated differently. That is the most pernicious, destructive, and corrosive effect of the Court’s ruling in Texas v. Whole Woman’s Health. It is up to the media to raise the alarm rather than treating the ruling as a complicated mess that must be explained using a flow chart. It is not. It is an earth-shattering shift in the constitutional firmament.

          Justice Sotomayor warned of the far-reaching, unanticipated consequences in her dissent:

          This Court has confronted State attempts to evade federal constitutional commands before . . . . Until today, the Court had proven equal to those challenges. [¶] The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can . . . . This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them.

          What can you do? Call your Senators and Representatives and tell them that Congress must expand the Supreme Court by passing the Judiciary Act of 2021 as a first step to reestablishing the rule of law and the supremacy of the Constitution. You can reach your congressional representatives by following the links in Chop Wood, Carry Water 12/10 - by Jessica Craven—which also includes a helpful set of suggested talking points to use when you reach your representative’s answering service. The progressive group Demand Justice is leading a coordinated effort to reform the Supreme Court (including imposing a first-ever code of ethics for the Supreme Court!). Then do everything in your power to ensure that Democrats win in 2022 and 2024. This is not business as usual.           

The Protecting our Democracy Act passes in the House

          After the disappointing news about the Supreme Court, let’s look at signs of progress. Rep. Adam Schiff is leading the effort to pass the Protecting Our Democracy Act. The Act contains a host of reforms that will prevent the abuses of power we witnessed in the prior administration. The Act will provide oversight of the pardon process and prohibit self-pardons, extend the statute of limitations on presidential crimes, make the president subject to suit for violation of the emoluments clause, restrict the ability of the president to withhold funds appropriated by Congress, protect the independence of the Attorney General from presidential interference and much more!

          The House passed the Protecting Our Democracy Act last week on a party-line vote. Sigh. Since the Act will restrain the power of presidents from both parties, why would any Republican oppose the Act? In any event, on to the Senate!

          Adam Schiff was a rock that many of us clung to during the harrowing events surrounding the first impeachment. He continues to fight for us every day. Many Americans are likewise blessed with hardworking congressional representatives. Let them know that you support the Protect Our Democracy Act. And if they deserve your gratitude for continuing the fight during these difficult times, be sure to tell them “Thanks.” You can use the information in the above article to contact your congressional representatives.

Documents produced by Mark Meadows to House Select Committee.

          Documents produced by Mark Meadows to the House Select Committee have captured the headlines in the last few days. For example, in the documents produced by Meadows was a PowerPoint that outlined a plan to overturn the election. See MSN, “Mark Meadows PowerPoint Plan to Overturn Election Results Revealed.” Meadows claims that he received the PowerPoint via email, but never opened it. But the person who emailed him the PowerPoint met with Meadows on multiple occasions, so the notion that Meadows was unaware of its contents seems remote. See Talking Points Memo, “Circulator Of Jan. 6 Powerpoint Claims He Met With Meadows.”

          The PowerPoint is here (thanks to Jill Wine-Banks on Twitter). The PowerPoint repeats the unhinged talking points that were promoted by Trump’s “gang (of lawyers) that couldn’t shoot straight” in their post-election lawsuits. A key slide in the deck asserts the following:

          Key Issue: China has leveraged financial, non-governmental and foreign allies including Venezuela to acquire INFLUENCE and CONTROL US Voting Infrastructure in at least 28 States.

          While there is little new information in the documents that was not readily apparent in Trump’s actions leading up to January 6th, they may be important in establishing a criminal conspiracy. If Meadows was intimately involved in the plan to overthrow the election, it is highly likely that Trump’s fingerprints are all over the documents, as well. Which is why Trump is asserting executive privilege over documents that were part of an attempted coup.

          But the most important takeaway is that the House Select Committee is making substantial progress in developing the facts notwithstanding Trump’s efforts to impede the investigation. We should feel good about that. Let’s hope Merrick Garland is making similar progress in his investigations . . . .

Concluding Thoughts.

          It is easy to drive ourselves to despair by focusing on backsliding in the Supreme Court and Biden’s sagging poll numbers. But life is no bed of roses for Republicans, either. Let’s not imbue Trump with mythic powers and invincibility. At the moment, he is the leading contender for the GOP nomination. As a former president, he should have a lock on the nomination. But his erstwhile friends and supporters are inching away from him, setting up the possibility of an epic and bruising fight.

          Trump is on a tour with the disgraced (former) Fox news personality, Bill O’Reilly. Despite Trump’s usual claims of “huge crowds,” the first event had thousands of empty seats. MSN, Donald Trump and Bill O'Reilly's Tour Begins With Empty Seats in Florida.” People who bought seats in the “nose-bleed” section were promoted to the VIP section so the event would appear to be packed. And Trump’s effort to act as kingmaker in the North Carolina GOP primary to succeed Senator Richard Burr is not working. The Hill, “Trump struggles to clear GOP field in North Carolina Senate race.” Trump’s death grip on primaries appears to be fading. And, finally, Mike Pence is floating stories about his possible challenge to Trump—a clear sign that Pence believes Trump is vulnerable. The Hill, “Pence fuels speculation of 2024 presidential bid.”

          Whatever Biden’s woes, no Democrat is talking about mounting a primary challenge to Biden similar to Pence’s nascent effort to displace Trump. The good news (for Democrats) is that Trump will not react well to challenges from within his own party, which will lead to more political infighting and bloodletting—inevitably driving an extremist party to greater extremes. While that might be anxiety producing, it will also make it more difficult for a Republican presidential candidate to win in 2024. Good.

          Let’s get out of our own heads and focus on the challenge in front of us. Despite our imagined fears, remember that voters will walk into polling booths and choose between real candidates. In many contests, one of those candidates will claim that deceased Venezuelan President Hugo Chavez rigged the 2020 election through thermostats in polling locations (despite having been dead for seven years). The other candidate will be talking about childcare, paid medical leave, free college education, climate change, and infrastructure. Trump cultists will believe the bit about Hugo Chavez, but persuadable Independents will not. Our goal is to reach undecided voters who are rational and focused on substance, not conspiracy theories. We can do that.

          Talk to you tomorrow!