The Daily Parker

So, what's going on today?

• Emma Green explains "how the Federalist Society won," which actually kept awake in the middle of the night on Tuesday.
• As a reminder that the true goal of the Federalist Society—and right-wing governments in general—is actually to transfer wealth from the poor to the rich, the Times explains how Alabama's criminal justice system essentially creates indentured servants from impoverished inmates.
• David Jolly, Christine Todd Whitman, and Andrew Yang have formed a centrist political party. I will watch this with interest. But the Onion might have the best take on it.
• John Pavlovitz states the obvious: actual Christians reject Christianism.
• Cranky Flier agrees that Spirit Airlines' board made the right choice going for JetBlue instead of Frontier.

Finally, I meant to post this earlier: Cassie, plotzed, after getting home from boarding Sunday night.

It's a lovely day in Chicago, which I'm not enjoying as much as I could because I'm (a) in my Loop office and (b) busy as hell. So I'll have to read these later:

• Josh Marshall points out the obvious, that the filibuster is a direct threat to American democracy. Brynn Tannehill says, actually, that's only one part of how we become Hungary.
• Someone just paid $11.25 million for a lakefront house in Winnetka that, if the renderings are accurate, I hope they tear down. This comes with new figures showing Chicago real estate prices have jumped 25% over two years, one of the largest increases in history.
• Law professor Mary Ziegler wrestles with the question of why abortion opponents suddenly also oppose saving the lives of pregnant women.
• Bruce Schneier sketches out Apple's lockdown mode.

Finally, Mick Jagger turns 79 today, which surprised me because I thought he was closer to 130.

Writing in The New Yorker last week, Corey Robin argues that the violent and authoritarian world-view of Justice Thomas (R) has much more internal consistency than we on the left usually ascribe to it, but that doesn't make it better:

Thomas’s argument against substantive due process is more than doctrinal. It’s political. In a speech before the Federalist Society and the Manhattan Institute which he gave in his second year on the Court, Thomas linked a broad reading of the due-process clause, with its ever-expanding list of “unenumerated” rights, to a liberal “rights revolution” that has undermined traditional authority and generated a culture of permissiveness and passivity. That revolution, which began with the New Deal and peaked in the nineteen-sixties, established the welfare state, weakened criminal law, and promulgated sexual freedom. The result has been personal dissipation and widespread disorder. Workers lose their incentive to labor. Men abandon wives and children. Criminals roam and rule the streets.

Liberals often claim that there is something hypocritical, if not perverse, about conservatives enshrining the right to bear arms without enshrining the right to abortion. Conservatives have an easy response: one right is found in the Constitution, both as tradition and text; the other is not. That’s what Justice Samuel Alito argues in Dobbs and in his concurrence, the day before, in New York State Rifle & Pistol Association, Inc., et al. v. Bruen, which struck down part of New York’s concealed-carry law.

Bodily autonomy is so foundational to contemporary understandings of freedom, however, that it’s hard to imagine a reason for denying it to women other than the fact that they are women. The fetish for guns, meanwhile, can seem like little more than a transposition of America’s white settler past onto its white suburban present....

Today’s felt absence of physical security is the culmination of a decades-long war against social welfare. In the face of a state that won’t do anything about climate change, economic inequality, personal debt, voting rights, and women’s rights, it’s no wonder that an increasing portion of the population, across all races, genders, and beliefs, have determined that the best way to protect themselves, and their families, is by getting a gun. A society with no rights, no freedoms, except for those you claim yourself—this was always Thomas’s vision of the world. Now, for many Americans, it is the only one available.

To sum up our current state of affairs: it might have helped the United States if politicians on the left had taken seriously the worries that many of us expressed about the right's march to power. A minority dedicated to controlling the majority can succeed for a long, long time, until it wrecks the foundations of the society too much to survive. Just ask South Africa how that can go.

On this day in 1787, the Continental Congress passed the Northwest Ordinance, dividing up all the land west of Pennsylvania, north of the Ohio River, and east of the Mississippi River, into those little boxes you see when you fly over Illinois:

In 1781, Virginia began by ceding its extensive land claims to Congress, a move that made other states more comfortable in doing the same. In 1784, Thomas Jefferson first proposed a method of incorporating these western territories into the United States. His plan effectively turned the territories into colonies of the existing states. Ten new northwestern territories would select the constitution of an existing state and then wait until its population reached 20,000 to join the confederation as a full member. Congress, however, feared that the new states—10 in the Northwest as well as Kentucky, Tennessee and Vermont—would quickly gain enough power to outvote the old ones and never passed the measure.

Three years later, the Northwest Ordinance proposed that three to five new states be created from the Northwest Territory. Instead of adopting the legal constructs of an existing state, each territory would have an appointed governor and council. When the population reached 5,000, the residents could elect their own assembly, although the governor would retain absolute veto power.

The cadastral bits of the law explain why Chicago's streets form a grid and why Detroit has streets with evocative names like "13 Mile Road."

Josh Marshall shares a couple of emails from attorneys dismayed by the politicization of the right-wing Supreme Court majority. One of them gets to the root of the problem:

I don’t believe laypeople really understand what a a heavy, heavy emotional lift it is for the vast majority of attorneys generally, and law professors in particular. The belief that we are serving rule of law and that that while decisions will always be shaped by human weakness, judges can and will render rulings contrary to their ideological predilections if the law requires it is central to our identity. It is what makes more than the lawyer jokes say we are. It is the essence the constitutional principle of due process, equal protection, Magna Carta law of the land. All that stuff. It’s hard to accept that it’s dead and courts are just political actors, even as right wing billionaires have plowed fortunes into making state and federal courts exactly that.

Matt Ford, meanwhile, examines the recent heckling of Justice Brett Kavanaugh (R) at a Washington steakhouse and finds no Constitutional right to dinner:

Is there actually a constitutional right to dinner? Or, more specifically, did the Constitution protect a right to dinner at the time that the Constitution was adopted? The Supreme Court has shown in Dobbs and other cases such as New York State Pistol and Rifle Association v. Bruen that originalism is the only proper method to answer these questions. My own originalist analysis of this issue leads me to conclude that no such right to dinner exists in our legal heritage. Accordingly, I do not think such a right should be recognized now.

To understand whether Kavanaugh had a right to dinner at Morton’s, we must first look to the pre-constitutional context of medieval England to understand dinner’s place in the Anglo-American legal tradition. Antonin Scalia relied upon this time period in his majority opinion in District of Columbia v. Heller, as did Justice Samuel Alito in his majority opinion in Dobbs. There is surely no better way to decide the scope of rights enjoyed by Americans living in 2022 than by surveying the works of legal thinkers from a different country, most of whom died well before the first shot was fired at Lexington and Concord.

This historical evidence also shows that dinner involves a “profound moral question,” as Alito said of abortion in Dobbs. That sets it apart from other constitutional rights that don’t raise moral questions, like what counts as cruel and unusual punishment or what counts as religious freedom. The nature of dinner—when it can be eaten, what can be served, and who may take part in it—is also a matter of sharp and persistent division among the American people themselves. That distinguishes it from other constitutional rights like freedom of speech and the right to bear arms, where Americans rarely disagree. Dinner is just different, for reasons I will hint at but never explicitly say and that definitely have nothing to do with my personal views on the subject.

More constructively, James Fallows keeps his focus on a legal reform that would have bipartisan support if one group of partisans weren't batshit crazy:

It is hard to see how a democracy functions, long-term, with such limitless power in such unrepresentative and unaccountable hands. That is related to the critique that Elena Kagan made in her dissent from the disastrous ruling last week dis-empowering the Environmental Protection Agency, and is parallel to the case I made here.

Yesterday a group called Fix the Court released proposed legislation with a Plan A / Plan B structure.

—The main effect of the law, Plan A, would be to enact 18-year fixed terms for Supreme Court Justices, as many groups (including the American Academy of Arts and Sciences and several U.S. Representatives) have proposed, and is long overdue.

—The innovation of the law is its “contingency” provision. The Constitutional validity of any term-limit rules might ultimately be appealed to the same Supreme Court whose members would be affected. And suppose they ruled against it? To keep themselves in their seats?

If that happened, according to this provision, Plan B would kick in: the Court would automatically be expanded, from nine members to 13. The logic of this approach was laid out by G. Michael Parsons, of NYU’s law school, in a detailed law-review article and an op-ed last year.

Of course, this requires that a majority of the US Senate believe in democracy and the rule of law, when it sure seems like they don't.

I've said this before: the next few years will positively suck for the most vulnerable among us as the right-wing Court continues its rampage. Maybe enough people will vote for candidates who can stop it?

Some fun facts about the Justices of the United States:

• Five were appointed by presidents who took office despite losing the popular vote. All 5 voted to overturn Roe.
• Three of the Republicans on the Court—the Chief Justice, Kavanaugh, and Coney Barrett—worked for President George W Bush's Florida recount team.
• The 52 senators who voted in favor of Justice Kavanaugh's (R) confirmation represent 145.9 million Americans. The 48 senators who voted against him represent 180.7 million.
• The 50 senators who voted in favor of Justice Coney Barrett (R) represent 157.0 million to the 170.5 million the 48 no votes represent.
• Eight have law degrees from Harvard or Yale. (This will remain true next month when Justice Brown takes office.)

With those facts in mind, James Fallows argues that the Court burned its own legitimacy to ashes by not remembering the simple truth about judicial power:

[D]emocratic legitimacy depends in the long run on majority rule, combined with minority rights.

We’re now closer to systematic rule by a minority, rather than respect for its rights. A democracy cannot forever function this way.

The Supreme Court has a long up-and-down history of glory and of tawdriness. But I argue that the leaders and eras that stand up best in retrospect showed awareness that the Court’s power depended on legitimacy, and legitimacy depended on the Court’s care about how it fit into the longer-term life of a democracy.

[A] court concerned about legitimacy, would under- rather than over-intrude in public affairs.

Over-intrusion is what we have. In the anti-Miranda ruling. In the blocking of gun control. In the outright voiding of Roe v. Wade.

The Court can make its rulings. From behind its barricaded and no-guns-allowed building.

It cannot preserve its legitimacy this way.

Linda Greenhouse concurs:

Consider the implication of Justice Alito’s declaration that Roe v. Wade was “egregiously wrong” from the start. Five of the seven justices in the Roe majority — all except William O. Douglas and Thurgood Marshall — were appointed by Republican presidents. The votes necessary to preserve the right to abortion 19 years later in Planned Parenthood v. Casey, the Roe follow-up decision that the court also overturned on Friday, came from five Republican-appointed justices.

In asserting that these justices led the court into grave error from which it must now be rescued, Justice Alito and his majority are necessarily saying that these predecessors, joining the court over a period of four decades, didn’t know enough, or care enough, to use the right methodology and reach the right decision. The arrogance and unapologetic nature of the opinion are breathtaking.

There will be turmoil now, for sure, as the country’s highways fill with women desperate to regain control over their lives and running out of time, perhaps followed by vigilantes across state lines. But the only turmoil that was caused by Roe and Casey was due to the refusal of activists, politicians and Republican-appointed judges to accept the validity of the precedents. Justice Alito’s reference to “turmoil” reminded me of nothing so much as Donald Trump’s invocation of “carnage” in his inaugural address. There was no carnage then, but there was carnage to come.

No, justices, your work isn’t done. What you have finished off is the legitimacy of the court on which you are privileged to spend the rest of your lives.

Here's some "turmoil:" some asshole in Iowa drove his truck into a pro-choice demonstration yesterday, injuring at least one woman.

One simple solution: 18-year terms. If we adopt this reform, Thomas (R) would be the first one to go followed by the Chief Justice (I) and Alito (R), which are strong arguments in favor as far as I'm concerned.

As everyone expected, the Supreme Court today overturned Roe v Wade, ending Federal protections for abortion rights until we find a political fix to the reactionary Court supermajority. (We will; it'll just take time.) I haven't read the published opinion, which 4 of the partisan Justices joined. Chief Justice Roberts (I) wrote his own concurrence accepting the outcome in this specific case but rejecting the broader reversal.

At first glance, Justice Alito's (R) opinion seems close enough to the draft leaked last month, so I'll move on from that for now. But we should all regard with horror and alarm this line from Justice Thomas's (R) concurrence, in which he expresses just how batshit crazy fundamental Christianist he really is:

[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9).

Dobbs v Jackson Women's Health Organization, 587 US __ (2022) (THOMAS, J., citing himself as evidence for his own insane assertions.)

In other words, Thomas wants to return to the halcyon days of the '50s—the 1850s. And isn't it a bit rich that this particular Justice wants to undo so much progress? If only he had the courage of his convictions so he'd resign as the Founders intended.

I think we're in for about 10 years of this kind of crap before people finally have enough, or worse. At least Thomas and Alito no longer make any pretense of impartiality or reason.

Another thing to remember: we need to look at the commercial cases the Court has decided this term. Abortion isn't the prize for the Right; it's the payoff to their supporters. The real money's in the real money. Don't forget that.

San Francisco voters recalled District Attorney Chesa Boudin 60%-40% yesterday (but with only 26% turnout), which suggests a growing backlash against progressive crime policies as crime rates inch up from their historic lows:

Boudin was an easy scapegoat. Decades of failed housing and mental-health policies have fed a homelessness crisis in a city that was never as liberal as it appeared. The pandemic appeared to fuel deep sociological challenges that no politician or prosecutor had easy answers for. Still, his rejection reflected visible grassroots anger at both these conditions and his policies, particularly Boudin’s unwillingness to bring heavier charges against shoplifters and other kinds of petty thieves that had come to define, in the popular imagination, 2020s San Francisco. Wealthy, older voters were eager to dump Boudin, as were middle-class non-white voters, particularly Asian Americans. Victimized by a surge in hate crimes, Asian voters felt Boudin had not responded properly to their plight. In 2021, Boudin drew sharp criticism for failing to describe the murder of Vicha Ratanapakdee, an 84-year-old Thai man, as a racially motivated crime. While denouncing the crime, Boudin said the defendant was “in some sort of a temper tantrum” and said there was no evidence to charge him with a hate crime. His office would later charge him with murder and elder abuse, but it wasn’t enough to assuage anger in the community.

The outcome in Los Angeles, though, was not so decisive. [Rick] Caruso, a former Republican who developed the Grove and other popular malls in the city, unloaded almost $40 million to shoot to the top of the polls and discombobulate a sleepy race that was supposed to be Bass’s to lose. Caruso blanketed the city with TV and digital ads and secured the backing of several major celebrities, including Kim Kardashian and Gwyneth Paltrow. His campaign, in many ways, represented conservative backlash: He promised to hire more cops and championed the broken-windows policing pioneered by Bill Bratton, the former police commissioner of L.A. and New York. Like Rudy Giuliani and other right-wing mayoral candidates of yore, he vowed to crack down on perceived disorder in the city.

Caruso was also able to exploit the blind spot of California’s left — the belief that it is progressive, and accepted by broad numbers of people, to allow the unhoused to sleep in tents on public property. But, borrowing from some on the left in the housing movement, he also promised to build 30,000 new shelter beds, convert more hotels and motels into shelters, as well as petition the federal government to triple the number of Section 8 vouchers.

Because we Americans have the maturity and attention spans of toddlers, the Right can always count on progressive policies (mental health care, education, anti-poverty measures) taking too long to solve the problems (crime, drugs, homelessness) that a lack of said policies cause. In other words, we know how to reduce crime, drug use, and homelessness, but it takes a lot of time and attention to do so. Right-wing "lock 'em up" policies appeal to the toddlers voters because they seem immediate and decisive, even though overwhelming evidence shows they fail in the long run. The lack of voter turnout in San Francisco yesterday contributed to Boudin's loss, by some accounts.

I suspect Boudin's problems went a lot deeper than just advocating progressive, long-range solutions to crime and homelessness. It seems a lot like he had a tin ear and a rigidity of thought (i.e., arrogance) that pissed off his natural allies. We have the same situation here in Chicago, where Mayor Lori Lightfoot—whom I supported—has done everything in her power to ensure she only serves a single term, mainly by crapping on her friends. For example, in Chicago, it's hard to lose both the Chicago Teachers Union and the Chicago Public Schools, but Lightfoot achieved that elusive goal last year. It looks a lot like Boudin took a similar approach to office, with expected results.

The Supreme Court began its early-summer ruling season a bit early this year, starting with an opinion from Justice Thomas (R) that will make it easier for the state to kill innocent people:

[The] opinion claimed that a law restricting the power of federal courts to toss out convictions in state courts prevents Jones from seeking relief. But Thomas’s reading of this law is novel — his opinion had to gut two fairly recent Supreme Court decisions to deny relief to Jones.

Before Monday, the Supreme Court’s decisions in Martinez v. Ryan (2012) and Trevino v. Thaler (2013) should have guaranteed Jones a new trial. Both decisions deal with what should happen in the unusual circumstance when someone accused of a crime receives ineffective assistance of counsel, twice.

In Strickland v. Washington (1984), the Supreme Court held that a conviction must be tossed out if defense “counsel’s performance was deficient” and if this “deficient performance prejudiced the defense.” This safeguard against constitutionally inadequate lawyering would be meaningless if people who received ineffective assistance of counsel at trial could not challenge that conviction, either on appeal or in some other proceeding.

Martinez and Trevino established that someone convicted of a crime must have at least one shot at challenging their conviction on the grounds that they received ineffective assistance of counsel at trial.

“The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel at trial,” [Justice] Sotomayor (I) writes in the first line of her dissent. She continues that “this Court has recognized that right as ‘a bedrock principle’ that constitutes the very ‘foundation for our adversary system’ of criminal justice.”

Thus in Sotomayor’s mind, and in the minds of the two other justices appointed by Democratic presidents who joined her opinion, the purpose of a criminal trial is to determine whether or not someone is actually guilty of a crime — and to do so through an adversarial process where both sides are represented by lawyers who can present the best possible legal and factual case for the prosecution and the defense.

This is consistent with Thomas’s longtime position. As far back as Herrera v. Collins (1993), Thomas joined an opinion by Justice Antonin Scalia, which claimed that there is “no basis” in the Constitution for “a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” At the time, however, Thomas was the only justice who joined Scalia in this view.

Scotusblog also has its doubts:

Thomas spent the first 11 pages of his 22-page opinion recounting the grisly facts of the murders the defendants were convicted of, extolling the states’ authority to enforce criminal laws, and emphasizing the importance of the finality of convictions. Finally arriving at the issue at hand, Thomas cited cases holding that defendants are generally held responsible for their attorneys’ errors, and noted that while that general rule does not apply when counsel is constitutionally ineffective, the Sixth Amendment does not guarantee a right to counsel at the post-conviction stage – therefore, at this stage, the defendants were “at fault.”

Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, dissented. Her opinion was striking, even for a justice who is known for passionate dissents. She called the majority opinion “perverse,” “illogical,” and said it “makes no sense.”

The dissent zeroed in on the court’s prior holdings that the procedural default rule only applies to defendants who are “at fault” for failing to raise a claim, and that a defendant represented by a constitutionally ineffective lawyer cannot be held to be “at fault” for his lawyer’s errors. This requirement underscored what Sotomayor saw as the core absurdity in the majority’s reasoning: “A petitioner cannot logically be faultless for not bringing a claim because of postconviction counsel’s ineffectiveness, yet at fault for not developing its evidentiary basis for exactly the same reason.”

The debate between Thomas and Sotomayor in Shinn has reverberations beyond the cases of Barry Lee Jones and David Martinez Ramirez. Sotomayor argued that the majority opinion “tellingly” relied on dissents in Martinez and Trevino to support its reasoning. While the conservative majority’s explicit overruling of precedent has recently captured the public’s attention (albeit through a leaked draft), the practice of citing dissents to “hollow out” past precedents has garnered less scrutiny. But Sotomayor’s opinion subtly emphasized the danger that practice poses for the legitimacy of the court’s decision-making. Noting that the court in this case “resuscitates” an argument “that previously was relegated to a dissent,” Sotomayor contended that the argument “is just as unavailing now that it has captured a majority.”

Finally, one procedural quirk is worth mentioning in a case all about whether death row defendants are “at fault” for the failures of their constitutionally ineffective lawyers. In Ramirez’s case, Arizona did not object to the evidentiary hearing in the district court and did not raise AEDPA’s bar on developing new evidence until the case reached the U.S. Court of Appeals for the 9th Circuit. Ordinarily, an argument not raised in the district court is forfeited. But here, in a footnote, Thomas stated that the Supreme Court has “discretion to forgive any forfeiture” and because deciding the issue would reduce the likelihood of future litigation, “we choose to forgive the State’s forfeiture before the District Court.”

We will no doubt see a series of rulings like this, shielding the state from its errors while making life much more random and unforgiving for people already at a disadvantage economically or socially. As I hinted yesterday, authoritarians don't accept dissent of any kind, no matter how obviously stupid their own positions. Thomas wants to live in the world of Inspector Javert and Brazil. So, clearly, do the other four Republicans on the Supreme Court, and for some reason in this case, the Chief Justice.

We're in for a decade or so of really bad judicial outcomes. Let's hope we can get the pendulum swinging the other way soon.

Two stories that bear connecting. First: the Southern Baptist Convention found in an internal investigation that its leaders had covered up sexual assaults and other bad behavior throughout the hierarchy:

The SBC is the nation’s largest Protestant denomination, by far. It is the nation’s most powerful and influential evangelical denomination, by far. Its 14 million members help define the culture and ethos of American evangelicalism.

Last June delegates, called “messengers,” to the SBC’s annual convention responded to proliferating reports of inadequate or corrupt responses to sex-abuse allegations by voting overwhelmingly to commission an external review of their own leaders. The executive committee hired a firm called Guidepost to conduct the investigation.

The report is a calamity. My friend Russell Moore, a former president of the SBC’s Ethics and Religious Liberty Commission, called it an “apocalypse.” The report says that “for almost two decades, survivors of abuse and other concerned Southern Baptists” contacted its executive committee “to report child molesters and other abusers who were in the pulpit or employed as church staff.”

Page after grim page reveals crushing scandal after crushing scandal. One abuse survivor, a woman named Christa Brown, said that an executive-committee member turned his back to her when she addressed the committee in 2007. Another member allegedly chortled at her.

I highlight reports of abuse in the nation’s largest Protestant denomination, in one of its largest Christian camps, in one of its largest Christian universities, and in its most prominent apologetics ministry because it is past time to recognize that the culture of American evangelicalism is broken at a fundamental level. How many times must evangelicals watch powerful institutions promote and protect sexual predators before we acknowledge the obvious crisis?

Meanwhile, these same religionists have slowly but surely imposed their (need I bother to say hypocritical?) version of morality on the majority of Americans who disagree with it, culminating, we all expect, in the reversal of a secular view of abortion that has been law for 49 years:

In deciding Roe, the court made its commitment to secularism explicit. It had to. The question of when human life began and the exact status of a fetus were essentially religious questions. Different religious groups took divergent positions on abortion. Taking a stance within the dispute would involve the court in a religious debate, which it was loath to do because such a decision would violate the separation of church and state that it had earlier proclaimed.

[C]onservatives...became aggressively hostile to the ideal of secular legislation and to the notion that the state has any role in protecting the individual from religious groups. In recent years, the conservatives on the court have used the notion of religious freedom to carve out larger and larger institutions in American life — including for-profit corporations — that are able to make religious determinations limiting the choices of others. In doing so, they have helped unleash the religious authority that the court tried to contain in the 1960s and early 1970s.

With this history before us, the next steps may be easier to see. The invalidation of Roe, and of women’s right to an abortion, is not really an end but a beginning. Just as the court’s original decision in Roe v. Wade represented the apotheosis of a secular order through the privatization of religious sentiment, the court’s coming decision to overturn Roe represents a straightforward attack on the American secular ideal. It will probably be the first of many developments, as the wall of separation crumbles and as conservative religious authority floods American life.

You don't need a Ph.D. in psychology to understand why, either. The Christianist mindset is authoritarian, teaching that there is only one correct answer to any question. I'm not even sure that the abortion "debate" really matters to Christianist leaders except that they don't want anyone to challenge the authority they believe comes to them from their imaginary sky friend.

The end of Roe may wake up a few more people to the creeping Christianism coming from the Right, but maybe not. The revanchists will lose, but it may take a long time.