The Daily Parker

In yesterday's ruling in Harris v Cooper, the Supreme Court ruled against North Carolina's blatant gerrymandering. The surprising bit is that Justice Clarence Thomas voted in the majority on both issues. New Republic's Scott Lemieux postulates reasons why:

In a 2015 case, Thomas provided the fifth vote to an opinion holding that Texas was not required to issue license plates with the Confederate flag as part of its option of personalized license plates. It is not terribly surprising that even a conservative African-American who grew up impoverished in the rural Jim Crow South would have a different perspective on the Confederacy and its legacy than the typical conservative.

Thomas’s votes yesterday were squarely within that tradition. His brief concurring opinion emphasized that the result comported with two of his longstanding views. First, he believes that any use of race by the government, for any purpose, triggers strict scrutiny, a high burden North Carolina could not meet. Since the state conceded that District 1 was intentionally created as a majority-minority district, this made the case easy for Thomas as well as the other conservatives.

He also explained that he joined the liberal faction with respect to District 12 in part because of his belief in deferring to the findings of the trial court unless it clearly errs.

This isn't an evolution, but who Thomas really is, Lemieux says. Maybe Antonin Scalia so overshadowed Thomas that we really didn't see it? I'll need more convincing.

Josh Marshall says the filibuster is already dead, so it's the right thing to do for Democrats in the Senate to force the Republicans to take the next step:

If Gorsuch will be confirmed one way or another, why go through the nuclear option motions? I would say it's important for this reason. I've heard a number of pundits arguing that the real issue here, or much of the issue, is that Democrats still haven't gotten over the treatment of Judge Garland. That argument is both deeply flawed and entirely correct. This really is mainly about Judge Garland.

As Rep. Adam Schiff put it yesterday on Twitter, Mitch McConnell's historically unprecedented and constitutionally illegitimate decision to block President Obama from nominating anyone a year before he left office was the real nuclear option. The rest is simply fallout. Senate Republicans had the power to do this. But that doesn't make it legitimate. The seat was stolen. Therefore Gorsuch's nomination is itself illegitimate since it is the fruit of the poisoned tree.

Democrats likely have no power to finally prevent this corrupt transaction. It is nonetheless important that they not partake in the corruption. Treating this as a normal nomination would do just that. There are now various good arguments to vote against Gorsuch's nomination on the merits. But to me that's not even the point. Democrats should filibuster the nomination because it is not a legitimate nomination. Filibustering the nomination is the right course of action.

The Senate is scheduled to vote tomorrow on the nomination.

Once again, here's a list of news items I haven't fully digested but want to when I have a few free minutes:

• The Supreme Court split 4-4 on President Obama's immigration amnesty, which means the lower court decision stands, and 3 million people are now once again at risk of deportation.
• Oak Brook-based McDonald's is going to be Chicago-based McDonald's in 2018.
• Crain's thinks bankruptcy might be a good option for the City of Chicago.
• Meanwhile, the City Council approved new rules for ride-sharing companies and AirBnB.
• Closer to my house, an abandoned hospital will soon be torn down and replaced with a new condo complex after the City Council approved a deal with the developer yesterday. The hospital has been vacant since 2008, and off the tax rolls for 70 years, so this will be a boon to the area.
• Jeet Heer has a critique of Trump's anti-Clinton speech.

There's another major story that I'm following, about which I'll post in a few minutes.

Hillary Clinton and Donald Trump won their respective Illinois primary elections yesterday. And in other news:

• Turns out, a strong social safety net leads to lower mortality, and because poor, mostly-white areas in the U.S. voted theirs down to minuscule levels, poor, white people are not doing well.
• When you vote against your own party in a hot battle with the opposition governor, and the governor wins that battle, that's a career-limiting move. Illinois representative Ken Dunkin (D-Chicago) got spanked hard for doing that last night. Good.
• A guy got charged with a misdemeanor for allegedly jamming cell phones on the CTA Red Line.
• President Obama nominated an old white guy to the Supreme Court this morning, flummoxing Senate Republicans who want to stonewall the process.
• For no reason anyone can determine, the city seems to be waging a war against valet parking companies. Businesses are annoyed.
• The Daily WTF thought President Obama sounded like an idiot boss on the subject of cell-phone encryption. Even John Oliver thought so.
• London is using pigeons with tiny backpacks to measure air pollution. No, really.
• Marco Rubio's friends say he's a lazy, devious little twerp—on the record. He's also dropped out of the 2016 race, and will probably be out of politics for a couple elections.
• Donald Trump's butler probably thought he was helping his boss by giving an interview to the Times, but...well...
• The Chicago Comic and Entertainment Expo (C2E2) is this weekend. Here's what to see.

Time to write some documentation. Whee.

When I read this, I couldn't help thinking of this:

The silver Swan, who, living, had no Note,
When Death approached, unlocked her silent throat.
Leaning her breast upon the reedy shore,
Thus sang her first and last, and sang no more:
"Farewell, all joys! O Death, come close mine eyes! 
More Geese than Swans now live, more Fools than Wise."

In other burials of Caesar, former University of Chicago law students have had some unkind things to say about how Scalia treated minorities:

Ben Streeter, now an attorney with the Federal Election Commission and a former black student of Scalia’s, told Gawker that although he in fact passed Scalia’s course, he, too, noticed preferential treatment towards white students. Streeter said the final exam in one of Scalia’s classes included an unprecedented short-answer section, with answers that weren't covered in class. Streeter suspected Scalia had mentioned the material with students who came to visit him outside of class.

“In those days, the only students who came by to visit him were in the Federalist Society group,” Streeter told Gawker. “There was not a single black member of the Federalist Society in my three years at the University of Chicago.”

Phillip Hampton, the former president of the University of Chicago’s Black Student Law Association, told Gawker that he found it strange that “every black student’s lowest grade was in Scalia’s class.” He also remembered Scalia once saying that he could “usually tell papers that were written by African Americans,” even if they had no names on them.

Scalia at least remained perfectly consistent in these attitudes throughout his tenure in the Federal Courts. Remember last December, when he said black students should stay on the short bus?

The evil that men do lives after them; the good is oft interred with their bones; so let it be with Tony. We'll be clawing back Scalia's revanchist, racist, repulsive judicial legacy for two generations—or if not, we'll be a country I don't want to live in.

Corporations that have lost major cases at the Circuit Court level are settling rather than try their luck with a post-Scalia Supreme Court:

I haven't had a moment to blog this weekend, but wow, what a major political event yesterday. Justice Scalia died suddenly on Saturday, and almost immediately Senate Republicans said they won't allow any nominee from President Obama to come to a vote. As Josh Marshall points out, this had no purpose save one:

In a typically insightful Twitter spree last night, David Frum noted that "McConnell’s precipitate statement [that he would refuse to hold a vote on any Obama appointee] is wrong not only on grounds of appropriateness & timing, but even politics ..." As Frum notes, it is entirely unnecessary for McConnell to make this stark pronouncement. He and his Senate caucus could simply decide in advance to judge any nominee beyond the pale, reject them on a party line vote and run out the clock.

Part of me thinks this too. And I agree with David that it is simply wrong. But I think I know why McConnell is right out of the gate with a principle he seemingly has no need to explicitly invoke:to normalize the behavior, to stake out the maximalist position early in order to allow it time to become accepted as a given. And more than this, it makes sense for him to do so while the White House is bound by normative rules of propriety and decency to focus on statements and gestures of mourning rather than political brinksmanship.

As I said, there's no debate here. It's just a power-play, a refusal to fulfill a straightforward constitutional duty, which no one, not the President or anyone else, has the power to prevent. Let's not pretend otherwise.

Because the Republican Party doesn't want to govern; they want to rule. And this has been the case since 1964.

Crain's has a good description of why the Court denied certiorari on an assault-weapons case but chose to hear an affirmative-action case this term:

The assault-weapons case from Highland Park, Illinois, is a perfect example. The case came to the Supreme Court through the U.S. Court of Appeals for the Seventh Circuit. It raises a substantial and important issue of federal law. That would be enough for justices who think the Illinois law is unconstitutional to grant cert if they really wanted to, as Justice Clarence Thomas made clear in his dissent from the decision to deny.

At the same time, there was a perfectly ordinary bureaucratic reason for the Supreme Court to deny cert: There's no conflict among the different courts of appeal on the legal issues. Several states have similar gun laws, but so far no federal court has struck them down. In October, the Second Circuit upheld bans in New York and Connecticut. And as I noted at the time, the Supreme Court could potentially avoid the issue so long as the appeals courts don't split.

All this brings us to timing: Are the justices affected by something like the San Bernardino attack?

At the margin, there's no question that they can be affected.

Some of the column is speculation, but the author has a good read on Roberts and Kennedy.

That's not exactly the question Richard Posner and Eric Segall raise, but it's not that far off:

Justice Scalia ... predicted in his dissent [in Lawrence v. Texas] that the court would eventually rule that the Constitution protects the right to same-sex marriage. This June, Justice Scalia’s prediction came true in Obergefell v. Hodges. He has vented even more than his usual anger over this decision. It has become apparent that his colleagues’ gay rights decisions have driven him to an extreme position concerning the role of the Supreme Court.

In a recent speech to law students at Georgetown, he argued that there is no principled basis for distinguishing child molesters from homosexuals, since both are minorities and, further, that the protection of minorities should be the responsibility of legislatures, not courts. After all, he remarked sarcastically, child abusers are also a “deserving minority,” and added, “nobody loves them.”

The logic of his position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, for enforcing it overrides legislation, which is the product of elected officials, and hence of democracy.

The entire op-ed is worth a read.