Isaac Laquedem

Wendell Phillips reminds us that history sometimes rhymes

The recent stalemate among the House republicans over their choice of speaker and the current threats of Speaker McCarthy to refuse to raise the ceiling on the national debt so that the nation can pay its bills brought to mind this delightful observation from a while back:

"A few years ago * * * the Republican party dared to refuse the appropriations for support of government - the most daring act ever ventured in a land that holds Bunker Hill and Brandywine.  They dared to persevere some twenty or thirty days.  It seems a trifle; but it is a very significant straw.  Then for weeks when Banks was elected, and a year ago, again, the whole government was checked till the Republicans put their Speaker in the chair."

Does that bring to mind Newt Gingrich shutting down the government, or Lauren Boebert holding up the organization of the House in January?  The author of the quoted words was Wendell Phillips (1811-1884), the famous orator and abolitionist.  They're from a speech that he gave in Boston on February 17, 1861.  The four omitted words represented by the three asterisks give the joke away: they are "while Pierce was President."

The House Democrats should pick a republican for speaker, but not just any republican

About a year ago, a republican political strategist named Sarah Longwell wrote in The Bulwark that the republican party was facing an ‘extinction event’ that resulted from Donald Trump having converted it into the MAGA party. The flailing efforts of the republican House majority to elect a speaker yesterday and so far today also are another sign that the extinction event has descended on the party.

Its schism into the group of the shamed and silent and the smaller and louder Trump-MAGA group brings back memories of the 1854 fracturing of the Whig Party, with some important differences, the largest of which is that the Whig Party fell apart over an irresolvable policy dispute: should slavery expand, continue, or be eliminated?  No common ground among the factions was available, as the policy difference was over a stark yes-or-no question.

By contrast the modern republican party gave up any pretense of policy ambitions years ago under Newt Gingrich’s leadership.  It has no policy; its modest platform for the 2020 election could be described as “policy” only in the way that a fig leaf can be described as “clothing.”  But where can the remaining rational republicans find a home?  On philosophical grounds they can’t join the Democratic Party, and without a billionaire or two as a funding source and a media presence (their henhouse won’t stand without a Fox to advertise it) they can’t start a new national party.  The two-party system needs two strong and responsible parties, and the republican leadership is too frightened of its cohort of crazies to make the effort to return it to reason.  Maybe what saves the system is not right-wing repentance but a variant of the solution played out in the Utah senate race, where the Democrats tried to elect a rational conservative to replace Mike Lee, something like the plain-bellied Sneetches temporarily donning stars.  The Democrats could contribute to bringing the opposition toward reason by picking a few moderate republican representatives and then voting as a bloc for those representatives, one after another, until one of their candidates from across the aisle attracts the votes of 10 sane republicans.  Odd as it would be for the Democrats to vote for a republican for speaker, doing so is their one way to get a speaker of the House who won't have had to make promises to the Boeberts and Gosars of the republican caucus.

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.

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.

New fence installed to protect nation from Samuel Alito

That's what I wish the reason was for fencing in the Supreme Court.  Instead, I'm taking the fence as having a deeper symbolism.  It's a striking visual image of how far the Court has gone to distance itself from the rest of the nation.

Justice Alito's draft opinion will hand the Ninth Circuit a powerful tool, if it dares to wield it

Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, recently leaked to Politico, proposes to overrule Roe v. Wade and Planned Parenthood v. Casey altogether.  The opinion contains some gems of legal thought that the good Justice may not have thought completely through before committing his view to paper.  Here's one of them.

On page 5, Justice Alito states flatly: "We hold that Roe and Casey must be overruled."  He then explains why:  "The Constitution makes no reference to abortion [true], and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely - the Due Process Clause of the Fourteenth Amendment.  That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'"  His quotations are from a 1997 case, Washington v. Glucksberg, in which the Supreme Court held that the Fourteenth Amendment does not bar a state from prohibiting physician-assisted suicide.

Let's talk about whether one current constitutional right is "deeply rooted in this Nation's history and tradition."  I have in mind the right of corporations to enjoy the same constitutional rights as people, upheld most notably in 2009 in Citizens United v. Federal Election Commission, the case that gave corporations the constitutional right of free speech, which they could express through unlimited political spending, unfettered by the FEC.  The right of free speech is certainly deeply rooted in our history and tradition, as it predates the adoption of the First Amendment in 1791.  We can trace the right of free speech, or at least the tradition, back to the libel trial of John Peter Zenger in New York in 1734.

But the rights of corporations are not deeply rooted in our history and tradition.  In fact, when the states came together to form the United States, corporations existed only by the grace and favor of the state legislatures, and before that, by royal charter.  To form a corporation, you needed to petition your state legislators, and possibly to subsidize some of them.  It was not until the 1840s that states began to adopt laws that allowed ordinary people to form corporations. In fact, at the end of 1791 the United States had only 41 corporations.  Thus, if you follow the reasoning of Justice Alito, the constitutional rights of corporations are not deeply rooted in the nation's history and tradition, and thus are not protected by the Due Process Clause of the Fourteenth Amendment.  The court has said that corporations have a constitutional right of free speech under the First Amendment, but the originalists on the bench have to twitch a little when they say that, because the Framers weren't thinking of corporations when they wrote the First Amendment any more than they were thinking of semiautomatic weapons when they drafted the Second Amendment.

Justice Alito's draft opinion overruling Roe v. Wade has been more than ten years in the making - you can see it foreshadowed in the opinion in Citizens United.  If the Supreme Court's final opinion adopts the logic and conclusion of his draft opinion, when the initial shock wears off, look for some of the federal appellate courts, the Ninth Circuit especially, to apply Alito's test for overruling Roe v. Wade as an excuse to disregard or very narrowly interpret other decisions of the Supreme Court that aren't supported by sound reasoning.