Indivisible Upper Yellowstone – Weekly Journal
The Week of Saturday, June 25 through Friday, July 1, 2022 [Vol.3 No.50]
Supreme Court Remodeled // Jan. 6 Hearing – Cassidy Hutchinson
The Week’s Most Notable
It was a pivotal week in U.S. history. This observation is obviously premature, still. . . .
The U.S. Supreme Court completed its current session on Friday. In the chaos of the week, few seemed to realize that the court finished with a flourish. In a sentence: Congratulations, our Supreme Court has been remodeled! There are now six justices plenipotentiary (all-powerful), and three closet justices. While there were a few cheers for the first black female justice, Ketanji Brown Jackson, she will be quickly hustled into the liberal closet where she can be heard occasionally but is essentially irrelevant.
The remodeled Supreme Court, three or four decades in the making, sports a new all-corporate look, is indifferent to precedent, ultimately makes most decisions based on whether it keeps corporations profitable and the Republican party in power, harbors deep theocratic inclinations, and has a strong tendency to avoid supporting democracy or anything that has to do with the hoi polloi. Its authority rests on numbers, 6-3 or 5-4, and its motto is simple, “We got the power.”
Incidentally, this new model of court often suggests that it bases decisions on “originalism” – only things originally in the Constitution and that for the most part were historically true in the period before 1800 have constitutional standing. The history of slavery, the Civil War, Reconstruction, and the 13th, 14th, and 15thh Amendments be damned and marginalized.
Perhaps everything written above sounds like hyperbole and sarcasm – if only. This remodeled court has an agenda, which the justices plenipotentiary have in part verbalized (especially Justice Thomas) and a modus operandi. The Dobbs anti-abortion decision set one legal pattern, but in terms of public relations was exceptional; it was a noisy excision of a constitutional right, a brutal one-fell-swoop judicial exercise with the blood and pain yet to come. From here on, most decisions will be deliberately made to seem more “routine.” The main legal mechanism will be to minimize federal government and send as much decision-making as possible to the states. Sometimes the six will make unilateral decisions, like Citizens United, often without tested evidential foundations, and sometimes, like Dobbs, they will simply kick the issue to the states. This works best for the court because most of the state legislatures are under Republican control and are in the thrall of corporate-wealthy donors.
In the two sessions before the 2024 elections, the remodeled court will nurture and cherry-pick cases that fit the agenda. The pattern will look much like it did this year. Here are some of the key decisions this session:
Abortion: Dobbs is now the word of reference; it used to be Roe (Dobbs v. Jackson Women’s Health Organization). The anti-abortion ruling is now fact and the states are free to gin-up any bloody-minded anti-abortion laws they like (as long as they are female hostile and look like they originated pre-1800). At least 25 states are going there. Conservative poll sages are betting abortion will not be a big factor by November. They believe women will get used to the restrictions, which will be cleverly obscured by an absolutely confusing morass of state laws, legal challenges, and misleading rhetoric – better known as Fox News propaganda. However, the fallout from the ruling is just beginning. It’s more likely that at least 60% of the population is not going there. Among women – voters especially – it will be far more than that. Some polls are already showing a 10% shift toward Democrats (possibly a touch premature) as a harbinger.
Climate Change: WV v. FDA – We don’t need no stinkin’ regulations! As a first slice in gutting the EPA, the court rolled back the Environmental Protection Agency’s ability to reduce the carbon output of existing power plants. More fundamentally, the ruling set up the challenge to federal agencies having regulatory authority. The conservative bloc wants to send most regulatory issues on environment to the states. In short, it’s the new playbook where nominally states are free to have stronger or weaker regulations, but in practice because most states are more easily manipulated by corporate money, most regulations will fall to the weak side. The future: Look for many new cases, for example in October 2022, there will be cases challenging the Clean Water Act, where the court will side with deregulation and/or punt the issue to state legislatures or courts. Without EPA resources and knowledge, the state regulations, such as they may be, will be weaker, poorly formed, and often unenforceable. Just what we need to handle climate change.
Religion: Makin – Church and state go hand in hand (Carson v. Makin). Your taxes for my religion. The Unholy Grail of the court’s conservative majority invalidated a Maine tuition program, ruling that the state cannot bar religious schools from receiving public grants extended to other private schools. Roberts, writing for the majority, said the tuition program “promotes stricter separation of church and state” than the Constitution requires. The future: Every session will have numerous cases involving payment of public funds for private and religious education, which in practice means a slow measured shift of public funding for Catholic schools.
Kennedy–- Religious football (Kennedy v. Bremerton School District). The court sided with a former high school football coach who was fired after leading postgame prayers on the 50-yard line. Gorsuch, writing for the conservative majority, said the coach’s prayers at the public-school event were protected by the Constitution’s guarantees of free speech and religious exercise and did not violate the prohibition on government endorsement of religion. The future: This decision was based on very sketchy facts. In the new scheme of things, it doesn’t matter. Expect many more cases affirming the right of religious practice, that is, Christian religious practice, during official school time.
Gun Control: Bruen – Guns are good, guns everywhere are better (New York State Rifle and Pistol Association v. Bruen). New York’s open carry limitation (registration required) goes down. In this decision the court said that law-abiding Americans have an unobstructed right to carry unconcealed handguns outside the home for self-defense. Five other states with similar laws are now targeted. Of course, the plenipotentiary court knows about the mass shooting crisis, Uvalde et al. – the dissents from the closet court made it clear what was at stake. However, as it is with their Republican laypeople, the Second Amendment takes precedence over lives; the prevailing attitude is “deal with it.” The future: Expect numerous cases over the next two or three years to undo various gun owning/handling restrictions.
Election Rights: North Virginia v. U.S. At the heart of this case set to be heard in 2023 is an idea gaining support among conservatives (like Trump and John Eastman) known as the independent legislature theory: the notion that state legislatures have the sole power to set the rules for elections and that their decisions cannot be reviewed by state courts. Previously, since this completely undoes American democracy, the concept was always DOA, however, with the newly remodeled SCOTUS?
[Note: Most people have a kind of innate aversion to legal thinking and terminology (resembles math anxiety). Very understandable. Get over it. Please. The U.S. is entering a period of years, maybe decades, where some very serious issues are going to wind up before the Supreme Court. A lot of good legislation is going to die at the hands of the justices plenipotentiary. The only counter is to have a lot of people – especially voters – engaged with what’s going on.]
Jan. 6 Committee: Hearing VI, Cassidy Hutchinson Testimony
Bombshell. The crater left in the Trump-Republican-right-wing façade caused by the surprise Jan. 6 Committee hearing continues to widen – and they haven’t been able to backfill it with mud and dirt. Trump, Fox News, and reactionary radio rolled out their well-greased smear machine against the heroine of the two hours on a Tuesday afternoon, Cassidy Hutchinson – but too little too late. (This hearing really was a surprise.) Hutchinson had the courage, looks, demeanor, authenticity, and eloquence to deliver some of the most stunning testimony in congressional history: Trump wanted guns at the Capitol; he wanted to lead the mob in person; he thought Pence deserved hanging; he did nothing to stop it.
(Parenthetically, it should be noted that what seems to have had the most impact on the public – and the media – was her testimony about Trump throwing food (ketchup on the wall) and the reported wrestling match in the presidential limo. It’s often these relatable details that really catch people’s imagination.)
She was asked about Trump’s 2:24 tweet targeting in real-time an attack on VP Pence. “As a staffer… I remember feeling frustrated, disappointed, and really it felt personal. It was really sad. As an American, I was disgusted. It was unpatriotic. It was un-American. We’re watching the capitol building get defaced over a lie. And it was something that was really hard in that moment to digest… I still struggle to work through the emotions of that.”
Her testimony and the viral media coverage that followed may have tipped a political balance; over time making it far more difficult to shamelessly espouse the Big Lie, Trump’s good intentions, or the innocence of violently sacking the Capitol. She may have foreshadowed grounds for DOJ legal investigation, even indictments. She made Trump seem like a wild-man, Mark Meadows seem catatonic, and all the men around her moral pygmies in the face of a constitutional crisis.
The committee hearings resume after July 11 with hints that there are more revelations to come, maybe not as explosive as the Hutchinson testimony, but also important.
Saturday, June 25
[Ukraine] Russia Again Uses Belarus as Launching Pad – Aircraft originating in Belarus fired missiles into central Ukraine. It was the first of several incursions during the week, mostly intended to show that Russia could still strike at will. That’s part of the set up for future negotiations, each side trying to prove itself with the upper hand. [Update: Missiles struck Kyiv on Sunday, timed with the G7 meeting in Germany. Monday: 18 killed by missiles aimed at Ukrainian shopping mall. Thursday: 21 killed by missiles striking near Odessa.]
[Gun Control] Biden Signs Bipartisan Gun Control Bill – The bill closes some loopholes and calls upon states to pass red flag laws. Better than nothing, and it was bipartisan. Biden noted, “God willing, it’s going to save a lot of lives.”