Congressional Dems Flirt With Heading Off Supreme Court On Mifepristone  

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Vintage 2020

If it wasn’t my job to know the working details of the simmering apocalypse we call American politics, some of the headlines this week might’ve made me think I was back in 2020.

We had Donald Trump quite literally reviving his old “Stop the Steal” mantra as he labeled every attempt at holding him legally accountable for his actions “election interference,” which is really more vintage 2017 than 2020.

We had the RNC scoring some legal wins as part of the party’s ongoing war on mail-in voting (coincidentally while also trying very hard to make sure Republican voters actually participate in vote-by-mail and other early voting practices).

We took a look at the ongoing cycle of delegitimization of our country’s election systems that 2020-era MAGA attacks on democracy created.  

We had Alex Jones and Michael Flynn in the news as the originators of more conspiracy theories in the wake of a tragedy. Peak Groundhog Day stuff. 

But what TPM has on tap for your this weekend has plenty of fresh 2024 flair:

• Below, Kate Riga digs in on Supreme Court oral arguments in the mifepristone case, which saw conservative justices resurrect the long-dormant, 19th Century Comstock Act as a better way to restrict abortion than what the right-wing litigants before them had attempted.
• Josh Kovensky writes on John Eastman’s disbarment as one of the few tangible forms of coup accountability we might see before Election Day, and where the disgraced lawyer may be headed next. 
• Khaya Himmelman reports on the tabulation center-turned-“encampment” in Maricopa County, Arizona and how it helps us grasp just how grim things are looking for election workers heading into the general election this fall.

Let’s dig in. 

— Nicole Lafond

Congressional Democrats Flirt With Heading Off Supreme Court On Mifepristone

Justices Clarence Thomas and Samuel Alito laid the groundwork to a future challenge to abortion drug mifepristone, couched in Tuesday’s arguments over the Food and Drug Administration’s handling of the drug. 

That original case was clearly dead in the water, its legal standing too dubious for even most of the bench’s right wing to swallow. So Alito and Thomas started signaling to anti-abortion litigants that if they wanted to bring another case — challenging the legality of mailing mifepristone under the Comstock Act, a 19th century anti-vice law — they’d be amenable. 

A couple Democrats sounded the alarm about the law, long dormant, but technically still on the books. Anti-abortion activists have been increasingly eager to use it to prevent mifepristone from being mailed, a dynamic which is currently making it impossible to ban abortion completely, even in red states where it’s virtually illegal.

Rep. Cori Bush (D-MO) was the first to call for repealing the law after oral arguments. 

“The Comstock Act must be repealed. Enacted in 1873, it is a zombie statute, a dead law that the far-right is trying to reanimate,” she tweeted. “The anti-abortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban. Not on our watch.”

Sen. Tina Smith (D-MN) is also considering legislation to “overhaul the statute,” per Axios.

Realistically, this is not going to happen while Republicans control the House. But it adds yet higher stakes to the 2024 election (as if it needs them). It’s unlikely that a challenge under the Comstock Act would get to the Supreme Court before then, if it came up through the usual route. If Democrats could snatch a trifecta, they could head off the brewing anti-abortion attack.

— Kate Riga

A Grim State of Affairs

It’s a grim moment for election workers across the country. 

But, in Maricopa County, Arizona specifically, ground zero for 2020 election misinformation and election worker violence, it’s especially dark. In preparation for November, officials in the state’s largest county have renovated the voting infrastructure in response to extensive violence and threats to workers. The county’s tabulation center, said Maricopa County supervisor Bill Gates, now resembles “an encampment” with permanent fencing, barricades, badge requirements to even enter the parking lot of the facility, and metal detectors for entrance into the building. 

The measures are critical in order to avoid another what Gates describes as a “Lollapalooza for the Alt-right.”

In addition to physical safety precautions, Maricopa County Recorder Stephen Richer has also been at the forefront of an effort to get as much accurate information as possible to voters. He’s been hosting “Ask Me Anything” sessions on Facebook Live and X Spaces, formerly known as Twitter Spaces, as well giving voters tours of the county’s central election procession centers. 

It’s not surprising that election officials are still reeling from 2020, where conspiracy theories fueled by Donal Trump triggered a barrage of violence to workers. Just earlier this week Trump revived his “Stop the Steal” mantra in a Truth Social post, highlighting how a delegitimization cycle that originated in 2020 continues to play out in real time. 

The more Trump continues to use his “Stop the Steal” slogan to baselessly claim voter fraud, the greater the risk of violence to election workers, which is why in Maricopa County, a hotbed of election denialism, is preparing for another torrent of violence and threats. 

People like Trump do not need to wait for a normal election clerical error as a basis for starting voter fraud rumors. He’ll do it either way. And as Justin Levitt, a professor of law at Loyola Law School, pointed out, the delegitimization of elections is extremely lucrative – especially for Trump, who raised $30 million for his Save America PAC entirely on frivolous election fraud suits.

— Khaya Himmelman

When All Else Fails

Disbarment is the way. At least, that’s the case for John Eastman, one of the men who gave a sheen of legal grounding to Trump’s 2020 coup attempt.

A California bar court judge recommended that Eastman be disbarred this week over his efforts to advise Trump, and over his false claims of voter fraud to a federal judge. He’ll appeal, likely dragging the process out for months. But it represents the high water mark for accountability over Eastman’s role in the effort to reverse Trump’s 2020 loss.

It’s not to say there haven’t been other consequences. He’s charged in the Fulton County RICO case, and was listed as an unindicted co-conspirator in Jack Smith’s Jan. 6 D.C. indictment. He retired from Chapman University Law School after an outcry from faculty and trustee board members over his activities.

But with law receding from the universe of Eastman’s potential employment options, only one place will still take him: the Claremont Institute. Eastman is a senior fellow there, and is listed as a founding director of the group’s Center for Constitutional Jurisprudence. As I’ve written in recent weeks, Claremont sees the country as beset by a cold civil war, and is preparing for what forms of government may come next. In that regard, Eastman does have experience.

— Josh Kovensky