Isaac Laquedem

Clarence Thomas points the way to the future - and to the past

I wrote on June 24 about the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, in which a majority of the court overruled Roe v. Wade, and argued that the two important opinions are not the majority opinion and the dissent, but Chief Justice John Roberts's opinion concurring in the decision but not the reasoning, and Justice Clarence Thomas's opinion concurring in both the decision and the reasoning.  I discussed the chief justice's opinion.  Justice Thomas's opinion also merits scrutiny.

Justice Thomas wrote his concurring opinion not so much for the rest of the court - none of the other justices agreed with his views - but as a guide to state legislatures and the Federalist Society on what to challenge next. He focused on the doctrine of substantive due process, and listed several cases that he wants the supreme court to overrule when it gets the chance, among them the Obergefell v. Hodges (2015), protecting same-sex marriage, Griswold v. Connecticut (1965), protecting married persons' access to contraceptives, and Lawrence v. Texas (2003), preventing Texas from criminalizing private sexual acts between consenting adults.  He gives his game away in his two closing sentences: "Substantive due process conflicts with that textual command [the due process clause] and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity."

What he means by substantive due process is this. If you are indicted for murder, the state cannot take away your life or liberty (i.e., execute or imprison you) without affording you the due process of law: the right to a lawyer, the right to cross-examine witnesses, the right to be tried by a jury of unbiased persons, and so on. These are all rights to have a fair process, not rights to have a fair result. The idea of substantive due process is that as a citizen you have a constitutional right to have not just a fair process, but also a fair result.

In other words, if you are actually innocent of the murder, then you have a substantive due process right not to have the state execute you anyway - at least, you used to have that right. The court started 29 years ago to go down the path to which Clarence Thomas now points. In Herrera v. Collins (1993), a case from Texas, a majority of the supreme court held that a state does not violate the federal constitutional right to due process of a United States citizen if the state convicts and executes him for a murder that he did not commit, as long as the state provided the defendant with a fair trial and a proper appeal. 

Justice Thomas has shown the nation the legal future, and it looks a lot like the past.

The Alito Court finishes its first year with a bombshell

Earlier today, to the surprise of none, the Supreme Court released its opinion in Dobbs v. Jackson Women's Health Organization.  The court overruled Roe v. Wade, 410 US 113 (1973) and ruled that the United States Constitution does not prohibit states from regulating or prohibiting abortions, even as soon as one day after conception.  The majority opinion, in which five justices joined, is one of three constitutionally significant opinions that the Alito court issued this term.

"The Alito court?" you say.  "Not the Roberts court?"  Don't we customarily refer to the Supreme Court by reference to the chief justice, such as "the Rehnquist court" or "the Warren court"?

Well, yes, until now.  Pundits have today focused on the majority opinion, written by Justice Samuel Alito, and the dissenting opinion, a joint production of Justices Breyer, Sotomayor, and Kagan.  The two important opinions in the case, however, are the concurring opinion of Justice Clarence Thomas and the sort-of-concurring opinion of Chief Justice John Roberts.  Justice Thomas's opinion points the way toward returning the United States to the 18th century.  Chief Justice Roberts's opinion reveals that the Supreme Court is no longer the Roberts court; it is the Alito court.

Why?  Let's revisit the history of this case.  Dobbs is a Mississippi official.  Jackson Women's Health Organization provides abortions in Mississippi.  The state passed a law that criminalized abortions from 15 weeks onward, with an exception for medical necessity.  Jackson sued the state to enjoin (prevent) the state from enforcing the law, citing Roe v. Wade as binding precedent.  Jackson won at the trial level and before the appellate court.  The state appealed to the Supreme Court, which granted certiorari (agreed to hear the case) on the narrow question of "whether all pre-viability prohibitions on elective abortions are unconstitutional."  Mississippi told the court that it should "reconsider the bright-line viability rule," and that a decision for the state would "not require the Court to overturn" Roe v. Wade.

Only after the Supreme Court agreed to hear the case did Mississippi change its argument, pressing the court to hold not just that this specific law was constitutional, but that the court should overrule Roe v. Wade entirely.  The court did so.  This fact brings us to John Roberts's opinion.

Chief Justice Roberts concurred in the result: that is, he agreed with the majority that the law was constitutional.  He parted with Justice Alito and his cohort, however, when they struck down the rule of Roe v. Wade.  He agreed with the majority that the viability test of Roe v. Wade "should be discarded," but wrote that a woman's right to terminate her pregnancy -- a right that he specifically acknowledged -- "should extend far enough to ensure a reasonable opportunity to choose, but need not extend any further - certainly not all the way to viability."  He then cited a longstanding principle of judicial restraint: the court should decide only what is necessary to its decision, but not more.  "If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more." [The italics are his.]  To continue to quote the chief justice: "The Court's opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us."

What can we infer from Chief Justice Roberts's opinion?  I think it's fair to conclude that he attempted to drag his five colleagues back from their full-out repudiation of Roe v. Wade, not because of the merits of the case but because of how the judicial process is supposed to work.  He failed.  Not a single justice joined him.  We know from Justice Alito's draft opinion where the majority started from, and we know from Justice Alito's final opinion where the court ended up.  Chief Justice Roberts's concurrence in holding the law valid coupled with his refusal to overrule Roe v. Wade entirely means that the court no longer belongs to him.  It belongs to Samuel Alito.  John Roberts is now merely a passenger along for the train ride, praying that the engineer doesn't speed around a sharp curve.

Yesterday we learned more about the pardon list

Amusement and consternation followed the revelation earlier this week that retired law professor John Eastman, one of the team that worked to undo the 2020 election in the waning days of President Trump's term, had sent an e-mail to Mr. Trump's personal attorney Rudy Giuliani shortly after the January 6 insurrection.  Professor Eastman wrote, "I've decided that I should be on the pardon list, if that is still in the works." 

What "pardon list"?  Who was working on it?  The Select Committee had hinted two weeks ago that several lawmakers had asked for pardons.  Yesterday's hearing opened the door a little further when witnesses testified that six staunch House supporters of President Trump had asked for pardons: Mo Brooks of Alabama, Matt Gaetz of Florida, Andy Biggs of Arizona, Louie Gohmert of Texas, Scott Perry of Pennsylvania, and Marjorie Taylor Greene of Georgia.

How many more names were on the White House pardon list?  I think we're going to find out.

The Supreme Court stands up for the parental rights of rapists

Yesterday, in a case called Vega v. Tekoh, the United States Supreme Court held that a criminal defendant who gives an incriminating statement under interrogation without being informed of his constitutional right to remain silent, and who is later acquitted, may not recover damages under 42 USC §1983, a civil-rights statute, from the government official who elicited the statement.  Today the Supreme Court expressed a different view on the rights of criminals when it held that the United States Constitution does not prohibit the states from declaring that the right of a rapist to become a father outweighs the right of a rape victim not to become a mother - actually, the court held that a rape victim has no constitutional right not to become a mother against her will.

When it absolutely, positively has to be in the vice president's hands overnight, call Senator Ron Johnson

Senator Ron Johnson of Wisconsin has received some unwanted fame after being outed yesterday as a bit player in the attempt to steal the 2020 presidential election.  His role was to deliver to Vice President Pence envelopes with the ballots of fake electors from Wisconsin and Michigan.  One of his staffers, Chris Riley, texted an aide to the vice president just after noon on January 6, before the count started, telling him that "Johnson needs to hand something to VPOTUS please advise."  When he told the aide that the "something" was an alternate (i.e., fraudulent) slate of electors, the aide told Mr. Riley not to give the envelope to the vice president.  Asked for comment, Senator Johnson said merely that he had "no idea" who had delivered the fraudulent ballots to his office, leaving the inference that his office attempted to deliver the ballots to Mr. Pence as an incidental sort of constituent service and not as any part of a scheme to steal the election.

Senator Johnson has not posted anything yet on his official Facebook page about the spotlight that the January 6 committee cast yesterday on his role as a minor political bagman, but his constituents aren't waiting for him to respond.  They've flooded his recent posts on the Keystone XL pipeline and the danger of vaccinating babies against Covid with comments on his newfound national notoriety. 

The pithiest comment about the Wisconsin portion of the plot came from the executive director of the Wisconsin republican party, who on January 4 texted someone the message "Freaking Trump idiots want someone to fly original elector papers to the senate President.  They're going to call one of us to tell us just what the hell is going on."  We'll learn more when the hearings resume tomorrow.

A song for Rudy Giuliani and his pardon list

John Eastman, a retired law professor, told the January 6 Special Committee that he had e-mailed Rudy Giuliani shortly after the January 6 insurrection, writing "I've decided that I should be on the pardon list, if that is still in the works."  He joins the ranks of 29 Congresspeople (only one so far has been outed) who requested pardons in the last days of the Trump administration. 

Who kept the pardon list?  Mr. Giuliani, who was President Trump's personal attorney at the time?  Jared Kushner, the president's son-in-law and backstage gatekeeper?  Or someone else inside the White House?  Whoever it is, it deserves a bit of verse.  This one's to the tune of "I've Got a Little List" from Gilbert & Sullivan's operetta "The Mikado":

 

If someday it should happen that a pardon must be sold,

I‘ve got a little list, I’ve got a little list

Of conspirators and plotters whose misfortunes are now told,

And who all want on my list, who all want on my list.

There’s the crazy law professor who thinks Pence can pick the Prez,

And the Congressmen and women who repeat what Eastman says,

“Ordinary tourists” who invade the House’s floor,

The folks who take them up and down the stairs the day before,

Promoters of the Big Lie – well, I’m sure you get the gist,

They all want on my list, they all want on my list.

 

Footnote for fans of Professor Eastman:  His Wikipedia entry ends with this intriguing note:

Other

On January 7, 2021, Eastman edited this Wikipedia article to portray his post-election role in a more favorable light. His editing was reverted due to conflict-of-interest rules of Wikipedia, and on January 9 he appealed on the article's talk page, where some changes were approved but others were denied.^[118]

Theodore Roosevelt had the root causes of today's inflation pegged -- in 1907

Heather Cox Richardson, a professor of American History at Boston College who is now one of the most followed persons on Facebook, today tied together the consolidation of American and international industry into a few large combines that have an outsize effect on prices (i.e., inflation at the consumer level), against which President Biden now fights.  Do corporations charge high prices to cover their high costs?  Professor Richardson points out that in May Shell reported its largest quarterly profits ever, more than $9 billion.  (Pro tip: instead of buying gasoline, buy the stock.)

Where, then, do the causes of inflation come from?  Let's go back to August 20, 1907, and a speech that President Theodore Roosevelt gave in Provincetown, Massachusetts at the dedication of a monument to the Pilgrims.  The speech itself wouldn't be much remembered today (even Isaac isn't old enough to have been there) but for President Roosevelt having unveiled a phrase that echoes to this day: "malefactors of great wealth."  He meant the robber barons of the era and their successors such as John D. Rockefeller and Andrew Carnegie.  He talked about his administration's efforts to break up industrial combines, of the sorts that Professor Richardson wrote about today.  Here's his descriptor, in context: "It may well be that the determination of the Government (in which, gentlemen, it will not waver), to punish certain malefactors of great wealth, has been responsible for something of the trouble; at least to the extent of having caused these men to combine to bring about as much financial stress as possible, in order to discredit the policy of the Government and thereby secure a reversal of that policy, so that they may enjoy unmolested the fruits of their own evil-doing."

A modern politician wouldn't speak in such complex sentences, but would nevertheless recognize the thought: the oligarchs of the United States seek to strain the public's finances as much as possible so that they can discredit the government and line their pockets, untroubled by subpoenas, surveillance, society, and surtax.