The Daily Parker

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.

It's mid-July today, at least until around 8pm, when late April should return. The Tribune reported this morning that our spring has had nearly three times the rain as last spring, but actually hasn't gotten much wetter than normal.

Meanwhile:

• Millennial writer Marisa Kabas boggles at George W Bush's volte-face on the Iraq war this week.
• Josh Marshall shakes his head at the Republican Party's acceptance of a particular nasty and racist theory of immigration.
• Andrew Sullivan says this is because white people are acting like an embattled minority, thanks in part to the left crowing about driving them out of power: "If you demonize an entire race, you may at some point get the compliment returned. The more you raise racial consciousness among non-whites, the more you risk the same among whites. As Thomas Chatterton Williams warned: 'so long as we fetishize race, we ensure that we will never be rid of the hierarchies it imposes.' "
• Slate wonders why news reports about drivers hitting pedestrians so often reflect the car's point of view.
• Yesterday, WGN Radio turned 100.
• And tonight, I'll be watching season 3 of Love Death + Robots, featuring a new story by John Scalzi.

Finally, via The Onion, Google Maps now shows you shortcuts through people's houses when they're not home.

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.

US Representative Madison Cawthorn (R-NC) goes down in history as one of the worst one-termers since the founding of the Republic:

Chuck Edwards, a three-term state senator and business owner, has edged out Representative Madison Cawthorn in the Republican primary for a House seat representing North Carolina’s 11th District.

Luke Ball, a representative for Mr. Cawthorn, said late Tuesday that the congressman had called Mr. Edwards to concede. Mr. Edwards’s narrow triumph was called by The Associated Press.

The outcome served as a rebuke of Mr. Cawthorn, a right-wing firebrand and the youngest freshman in Congress, who was once seen as a rising star of the Republican Party.

Mr. Cawthorn, who has been in a wheelchair since a car crash that almost took his life at 18, struggled to overcome a series of old and new personal and political errors. He previously faced accusations that he had lied about key parts of his background and that he had been sexually and verbally aggressive toward women.

In recent months, he also has been accused of engaging in insider trading, charged with driving with a revoked license and stopped for trying to bring a gun through airport security — a second time. Photos and videos of him partying and emulating sexual antics circulated.

I had lost hope that Republican voters would ever lose patience with people like Cawthorn, and yet they did. Good riddance—in 8 months, anyway.

The CDC reported today that the US has officially passed 1 million Covid deaths:

The confirmed number of dead is equivalent to a 9/11 attack every day for 336 days. It is roughly equal to how many Americans died in the Civil War and World War II combined. It’s as if Boston and Pittsburgh were wiped out.

Three out of every four deaths were people 65 and older. More men died than women. White people made up most of the deaths overall. But Black, Hispanic and Native American people have been roughly twice as likely to die from COVID-19 as their white counterparts.

Of course, the CDC also believes we passed 1 million actual Covid deaths a few months ago, as the total number of excess deaths since 1 February 2020 has passed 1,119,000.

NPR reports that vaccine misinformation and Republican Party politics has led to a majority of those deaths in unvaccinated populations:

[W]e've been hit so hard due to fragmentation and inequalities in our health care system, as well as vaccine hesitancy, often fueled by politically motivated misinformation. Consider this, A - if you tally up the number of unvaccinated people who died from COVID after vaccines were open to all adults last year, it's about 319,000 lives lost, according to a Brown University analysis.

So Covid has killed more Americans than any other single event by many hundreds of thousands:

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.

South Texas College of Law Houston Law Professor Josh Blackman sketches out a timeline pointing to a right-wing Justice's clerk as the likely source of the Dobbs leak:

First, where did the leak come from? Most people are presuming this leak came from someone with access to the opinion, such as a Justice or a clerk. That presumption is probably correct, but it is also possible there was some illegal exfiltration of the document. ... People who are fanatical about abortion may go to great lengths to support their cause.

Fourth, Politico got the scoop. Not the Washington Post or New York Times or WSJ or NPR. Or, perhaps other outlets had a copy of the opinion, but only Politico was willing to run it. I still think WSJ had the opinion last week, in light of their editorial. The Supreme Court is in worse shape than I could have imagined.

Josh Marshall draws lines between Blackman's dots:

[T]he rapid-fire follow-up reporting on John Roberts’ position on the Mississippi case, just hours after the Politico exclusive, made me think at the time that the leaked draft opinion wasn’t a one off thing. It seemed part of a larger breakdown of secrecy or on-going leaks tied to the Mississippi abortion case. You don’t come up with details about the Chief Justice’s position and arguments from internal deliberations on one of the biggest cases in decades in an hour and a half if you’re beginning from a cold start. Then this morning I found out about this Wall Street Journal opinion page editorial from April 26th in which they fairly transparently write about current Court deliberations in the Mississippi case, specifically that John Roberts was trying to pull an unnamed conservative Justice back from fully overturning Roe.

[W]hy the column in late April? And why the specifics? It certainly reads like the authors had an inside read on on-going deliberations and fears that Roberts might be in the process of sneaking a defeat from the jaws of victory.

It reads even more like that when you read the piece in the context of the subsequent leak.

Blackman is a big advocate for overturning Roe. But that’s mostly neither here nor there for our present purposes. What’s interesting is that he’s written extensively about previous cases when Roberts nudged the Court toward less right-wing decisions and cases where there were leaks and pressure campaigns trying to prevent him from doing so. So Blackman is something of an expert on this on-going pattern and history. He seemed to spot it from his first read of the Journal editorial. Indeed, if I’m reading his piece correctly he seems to think the Journal may well have had a copy of the Alito opinion too.

(Emphasis in original.)

So, some clerk in Justice Alito's (R) or Thomas's (R) office gave photocopies of Alito's first draft to a number of right-leaning outlets, and Politico published first. All of this to push the Court towards a more extreme position than Chief Justice Roberts (I) can agree with.