The Daily Parker

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.

Today's head-scratcher comes from Loving County, Texas, population 57, where state authorities have arrested the county judge for—wait for it—cattle rustling:

Judge Skeet Jones, 71, the top elected official since 2007 in the least populated county in the continental United States, is facing three felony counts of livestock theft and one count of engaging in criminal activity, accused of gathering up and selling stray cattle, authorities said.

Officials with the Texas and Southwestern Cattle Raisers Association, the lead agency on the case, offered few specifics about the alleged crime. Commissioned through the Texas Department of Public Safety, the association has “special rangers” —  certified peace officers — who investigate livestock theft and other agriculture crimes. 

Jeremy Fuchs, a spokesman for the association, said the yearlong investigation is ongoing and more charges are possible.

Skeet Jones has gotten into trouble before, but nothing like this. In 2016, the state Commission on Judicial Conduct determined Jones failed to follow the law by charging steep fees — about $600 to $750 — for reducing tickets including speeding and marijuana possession down to parking tickets.

The judge denied any involvement in negotiations over tickets and told the commission he just approved the plea deals presented to him. He was issued a public warning and ordered to take 10 hours of additional education.

Read the whole story. Texas just ain't like most places.

This week's temperatures tell a story of incoherence and frustration: Monday, 26°C; Tuesday, 16°C; yesterday, 14°C; today (so far), 27°C. And this is after a record high of 33°C just a week ago—and a low just above 10°C Tuesday morning.

So while I'm wearing out the tracks on my window sashes, I'll have these items to read while my house either cools down or warms up:

• A Colorado Republican wants to create an "electoral college" for the state that would give one vote to each county to elect the state governor. The 14th Amendment wants to have a word with him.
• Like most people who breathe, Michelle Cottle is glad to see the back of Madison Cawthorn.
• Matt Ford would like to see the back of Justice Clarence Thomas (R), who "has gone full hack."
• The US Census Bureau reported that it under- and over-counted 14 states, including Illinois (1.97% undercount) and New York (3.44% overcount). Sigh.
• Illinois has started issuing craft grow cannabis licenses, with preference for majority Latino- and Black-owned businesses.
• Chicago has requested $400 million of the $2.9 billion transportation package the President signed last month. The money would go to storm sewers, highway reconstruction, and the CTA.

And finally, Ian Bogost feels elated that cryptocurrencies have crashed, particularly because he doesn't own any.

Canadian author Margaret Atwood wrote The Handmaid's Tale in the 1980s, when the establishment of a theocracy in 21st-century Massachusetts seemed like science fiction. Today, she worries she might only have gotten the location wrong:

Although I eventually completed this novel and called it The Handmaid’s Tale, I stopped writing it several times, because I considered it too far-fetched. Silly me. Theocratic dictatorships do not lie only in the distant past: There are a number of them on the planet today. What is to prevent the United States from becoming one of them?

For instance: It is now the middle of 2022, and we have just been shown a leaked opinion of the Supreme Court of the United States that would overthrow settled law of 50 years on the grounds that abortion is not mentioned in the Constitution, and is not “deeply rooted” in our “history and tradition.” True enough. The Constitution has nothing to say about women’s reproductive health. But the original document does not mention women at all.

Let’s look at the First Amendment. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The writers of the Constitution, being well aware of the murderous religious wars that had torn Europe apart ever since the rise of Protestantism, wished to avoid that particular death trap.

t ought to be simple: If you believe in “ensoulment” at conception, you should not get an abortion, because to do so is a sin within your religion. If you do not so believe, you should not—under the Constitution—be bound by the religious beliefs of others. But should the Alito opinion become the newly settled law, the United States looks to be well on the way to establishing a state religion. Massachusetts had an official religion in the 17th century. In adherence to it, the Puritans hanged Quakers.

If Justice Alito wants you to be governed by the laws of the 17th century, you should take a close look at that century. Is that when you want to live?

I sure don't. Why do Republicans?

Sheesh:

• Eriq Gardener provides four reasons not to think a Supreme Court insider leaked Justice Alito's (R) draft opinion.
• NPR reports that Justice Thomas (R) of all people complained about people losing respect for the Court.
• Alex Shephard agrees with me that the GOP caught the car with the Alito leak, but that won't stop them from threatening every other privacy-based right Americans have.
• Military analyst Mick Ryan examines where the Ukrainian army might engage the Russians next, and how they have maintained the initiative since the invasion.
• The Chicago City Council may finally have a new ward map, but no one seems happy about it, meaning it's probably the best compromise possible.
• The Economist's "Bartleby" column explains why "working from anywhere" doesn't work for most people.
• Cranky Flyer listened in on Spirit Airlines' earnings call to figure out why they rejected JetBlue's takeover offer.

And finally, when I left for San Francisco on Saturday morning, it was 10°C and sunny. Here we are about 76 hours later and it's 30°C. We really don't have spring or fall here some years.

According to my Garmin, I got almost 18 hours of sleep the past two nights, but also according to my Garmin (and my groggy head), few of those hours made a difference. I take some of the blame for that, but on the other hand, someday I want to stay in a hotel room where I can control when the air conditioner turns on and off.

Anyway, while I slept fitfully, these stories passed through my inbox:

• EJ Dionne reminds us that the current Supreme Court has decided many more anti-democratic cases than just the one on abortion.
• Inae Oh wants the Democratic Party to stop relitigating 2016 and actually do something. I agree.
• With a little more than 9 months before the election, the Tribune lists the current and probable candidates for Mayor of Chicago.
• Amanda Mull explains how awful medieval life actually was, despite myths to the contrary.
• Jill Lepore tries to help Justice Alito (R) understand why the Constitution doesn't mention women.

And finally, good news for the Brews & Choos Project: Lagunitas plans to re-open their taproom later this year.