It is such a breath of fresh air, seeing Justice Ketanji Brown Jackson say from the bench what the 14th Amendment actually says. “It’s not a race-blind remedy,” she says, in something of an understatement. But we can actually go well beyond this since so much of modern jurisprudence, mostly but not only from the right, is based not only on ignoring the context and plain text of the 14th Amendment but pretending that the real Constitution — albeit with some additions and fresh paint jobs — is the one finalized in the first Congress as the first ten amendments. The Civil War amendments are not only not race-blind. They reflect a larger realization and aim: that the whole state thing just hadn’t worked out.
Continue reading “A Breath of Fresh Air”Supreme Court Justices Get Chance To Dismantle What’s Left Of Voting Rights Act
The Supreme Court hears arguments in Merrill v. Milligan Tuesday, a redistricting case that will give the conservatives an opportunity to gut the Voting Rights Act even more thoroughly.
Continue reading “Supreme Court Justices Get Chance To Dismantle What’s Left Of Voting Rights Act”Luttig Eviscerates Fringe Legal Theory Favored By Conservative Pals: It Has ‘Literally No Support’ In Constitution’
As the Supreme Court starts hearing oral arguments for their fall term, legal experts have been sounding the alarm about Moore v. Harper, the redistricting case out of North Carolina that, depending on how justices rule, could substantially alter the future of American democracy. The case offers a dramatic reimagining of election powers at the state and federal level.
The once-obscure legal doctrine at the heart of the case, the independent state legislature theory, is rooted in a reading of the Constitution that hands governing authority over elections entirely to the state legislature, boxing out state courts’ power for checks and balances.
Among those warning about the ramifications of a SCOTUS ruling that bolsters the theory is former federal appellate judge J. Michael Luttig, who has repeatedly broken with his conservative colleagues in recent months to warn about how conservative justices might rule on the case. Earlier this year, Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Neil Gorsuch suggested in a dissent that it might be time for the high court to visit theory.
On Monday, Luttig published an op-ed in The Atlantic picking it apart. The independent state legislature theory rests in the belief that the Elections and Electors Clauses in the U.S. Constitution give state legislatures exclusive jurisdiction to draw congressional maps, change election rules, and appoint their own electors without interference from state courts.
The Elections Clause states:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.”
The theory came into vogue among conservatives only recently, making brief appearances in 2000 and 2015 before North Carolina’s Republican-led state legislature brought Moore v. Harper to the Supreme Court in an attempt to defend their heavily-gerrymandered new congressional maps.
Luttig, a renowned jurist who was appointed to serve in the U.S. Court of Appeals by former President George H.W. Bush, argues in his piece that there’s no constitutional basis for the theory, and suggest that validating it could disrupt the democratic process for years to come.
“If the Court concludes that there is such a doctrine,” he writes, “it would confer on state legislatures plenary, exclusive, and judicially unreviewable power to both redraw congressional districts for federal elections and to appoint state electors who quadrennially cast the votes for president and vice president on behalf of the voters of the states.”
Luttig also argues that the Framers wrote the Constitution specifically to enable Congress to reinforce the authority of state supreme courts, rather than circumvent it.
“Specific to the historical record of state judicial review, the Framers wrote the elections clause against the backdrop that most state constitutions at the time constrained their respective legislatures when they regulated both state and federal elections,” he writes.
“If there where authority in the Constitution to limit the state supreme courts in their exercise of the states’ judicial power, that authority would be found in the elections clause,” he writes, “because when the state legislatures prescribe the manner for holding federal elections, they do exercise federal constitutional power granted to them in that clause.” But, he explains, there is no evidence ruling out state judicial review of a legislature’s redistricting decisions to be found.
He lamented over why the Supreme Court would take the case up in the first place.
“There is no reason to believe that there would or should be any agreement among the justices as to how to fashion federal constitutional constraints on the state supreme courts’ review of their legislatures’ laws under their own respective state constitution,” he writes. “But there is every reason that they should never try.”
Jackson Turns Originalism Against Conservatives To Argue For Minority Voting Protections
Justice Ketanji Brown Jackson turned the favored tactic of her right-wing peers on its head Tuesday, advancing an originalist argument to support protections for racial minorities.
Continue reading “Jackson Turns Originalism Against Conservatives To Argue For Minority Voting Protections”KBJ Lets It Rip
Justice Ketanji Brown Jackson brings a devastating “originalist” reading to the Civil War-era constitutional amendments during the ongoing oral arguments over Alabama’s redistricting plan. Our live coverage here.
Adam Serwer: “I mean she is correct as a matter of fact and history it’s just not something you hear a justice say.”
Legal affairs reporter Chris Geidner, on KBJ this morning: “She’s really incredible, right from the start of her time here. Unlike any new justice that I’ve seen in my lifetime.”
Trump Lawyer (Wisely) Refused Ex-POTUS’ Demand To Say All Govt Docs Had Been Returned
Despite his boss’ demand, one of ex-President Donald Trump’s lawyers reportedly knew better than to claim in early 2022 that Trump had given back all the government records he’d unlawfully swiped at the end of his presidency.
Continue reading “Trump Lawyer (Wisely) Refused Ex-POTUS’ Demand To Say All Govt Docs Had Been Returned”Herschel Walker Camp In Crisis Mode Amid Paid Abortion Report And Son’s Public Rebuke
A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.
Code Red
Georgia GOP Senate nominee and ex-NFL star Herschel Walker–a supposedly anti-abortion hardliner who’s argued that there should be “no exceptions” to abortion bans–paid for a woman’s abortion when he impregnated her in 2009, the Daily Beast found.
- The woman (who was not named in the story) has literal receipts: She provided the Daily Beast with a receipt from the abortion clinic and a bank deposit receipt from a signed $700 check Walker had given her for the procedure.
- Most amazing of all, the woman also had the “get well” card Walker had sent her with the check:
- Walker tweeted on Monday night that he denies the report “in the strongest possible terms.” The former NFL star also vowed to sue the Daily Beast for defamation.
- Walker’s 23-year-old son, Christian Walker (one of the ex-NFL star’s four known children but the only one who was known publicly), tore into his father via Twitter with accusations of domestic violence several hours later. Declaring that he was “done” with his father, Christian alleged that the Senate candidate had threatened to kill him and his mother, forcing them to move “over 6 times in 6 months running from your violence.” Christian Walker’s mother, Cindy Grossman, has previously accused the ex-NFL player of domestic abuse.
Planned Parenthood Launches Plan For Mobile Abortion Clinic
Planned Parenthood announced yesterday that it’ll soon open a mobile abortion clinic in Illinois in the form of a 37-foot RV that will travel along the borders of neighboring states that have banned abortion.
- The clinic will move along Illinois’ borders in the areas of southeastern Missouri and western Kentucky after it arrives this month, according to Planned Parenthood. It’s expected to be fully operational by the end of this year.
- The clinic will start by offering abortion pills for the first 11 weeks of pregnancy, then will begin providing surgical abortions several months later.
Russia Doesn’t Even Know Where Its Annexed Ukraine Borders Are
Even as the Russian Parliament rubber-stamps Russian leader Vladimir Putin’s illegal annexation of four Ukrainian regions, the Kremlin admitted on Monday that it hasn’t actually determined the borders of the annexed areas, none of which are under Russia’s control.
Must Read
“What Video Footage Reveals About the Protests in Iran” – The New York Times
Jan. 6 Panel’s Tentative Date For Hearing Next Week
The House Jan. 6 Committee has tentatively set its next public hearing for Oct. 13, according to Bloomberg.
In Case You Missed It: Woman Who Lured Migrants To Martha’s Vineyard Identified
The New York Times and CNN have unmasked the woman who allegedly tricked Venezuelan migrants in Texas into boarding planes chartered by Florida Gov. Ron DeSantis (R) with false promises of food and housing before the planes took the migrants to Martha’s Vineyard: Perla Huerta, an ex-combat medic and counterintelligence agent in the U.S. Army.
- Huerta was discharged in August after having served for more than 20 years.
- The Bexar County Sheriff’s Office in Texas is scrutinizing Huerta in its investigation into DeSantis’ stunt, according to the New York Times.
Young Activist MTG Kicked To File Ethics Complaint
Gen Z advocacy group Voters of Tomorrow announced on Monday that it would be filing a complaint with the Office of Congressional Ethics against Rep. Marjorie Taylor Greene (R-GA) for apparently kicking one of its activists as she tried to ask the far-right congresswoman about gun control.
- Speaking of Greene, her husband moved to make their divorce proceedings public record yesterday.
SCOTUS Pooh-Poohs Mr. Pillow’s Push To Toss Defamation Suit
MyPillow CEO Mike Lindell on Monday failed to convince the Supreme Court to throw out Dominion’s $1.3 billion defamation lawsuit against him.
OAN Brags About Airing Debunked Election Conspiracy Movie
Trump’s arguably most devoted propaganda machine proudly announced yesterday that it had secured the “television premiere” of “2000 Mules,” a fake documentary about non-existent voter fraud in the 2020 election. The movie, which is the brainchild of far-right crank Dinesh D’Souza, has been debunked over and over and over and over and over*.
I, for one, am looking forward to seeing if we’ll be treated to this helpful and legally thorough disclaimer again:
Do you like Morning Memo? Let us know!
Where Things Stand: Desperate Michigan GOP Guv Candidate Tells Voters To Try Not Thinking About Abortion
It’s been an incredibly shameless pivot to the general election season for the current crop of Republican candidates hoping to secure wins in November. As they face the music on the electability of their extreme views, we’ve seen the candidates — some of whom have not only pushed Big Lie propaganda as policy positions, but have launched their entire political careers on the back of Trumpy election denialism — flail around, walking back or entirely reversing their stances on the 2020 election in recent weeks.
Desperate GOPers such as Blake Masters in Arizona have also attempted to completely re-write their views on abortion, as Roe’s overturning has turned out to be incredibly unpopular among Americans, and an energizing rallying cry for Democrats.
But Tudor Dixon’s recent spin might be among the most flagrant yet.
Continue reading “Where Things Stand: Desperate Michigan GOP Guv Candidate Tells Voters To Try Not Thinking About Abortion”Well, Lookee Here
Big props to TPM’s Josh Kovensky. A few hours after TPM published his exclusive story on the 11th Circuit Court of Appeals sitting on an appeal for nearly seven years without issuing a ruling, the court finally ruled in the case a few minutes ago. Here’s the latest.
11th Circuit Rules On Case Seven Years Later, Hours After TPM Story
The 11th Circuit Court of Appeals issued a ruling in a case on Monday more than seven years after the matter was first filed, and hours after TPM published an article about the delay.
Continue reading “11th Circuit Rules On Case Seven Years Later, Hours After TPM Story”