Answer: When one branch of government becomes an accessory to another’s power grabs, corruption and assaults on civil rights, our constitutional system breaks down. The prospect of an authoritarian president aided and abetted by Christian nationalists on the court should petrify Americans. Democrats need to put the court’s credibility front and center in the election and pledge to undertake court reform — even if it means dumping the filibuster.
A reader asks: If former president Donald Trump is reelected, could you foresee Justices Clarence Thomas and Samuel A. Alito Jr. stepping down so Trump can appoint very young jurists who will make it very hard for Congress to govern?
Answer: Two justices who relish their positions of virtually unlimited power might resist stepping down. Trump would want to find younger versions of them; they would want to hold on to the bitter end. Meanwhile, we would get 200 or so Judge Aileen Cannons in the lower courts, corrupting the rest of the federal bench. If that is not enough to drive Democrats to the polls, I am not sure what is.
A reader asks: Alito and Thomas have demonstrated their corruption. Does Chief Justice John G. Roberts Jr. even care about his legacy?
Answer: Honestly, for a time, I thought he did. He either cares so deeply about dismantling voting rights (beginning with Shelby County v. Holder) that he does not care about anything else or he is so weak and ineffective that he has no influence over his colleagues. It is also possible he is so cut off from reality that he does not grasp the depth of the problem.
A reader asks: Could the jurors in Trump’s hush money trial be given the option of voting for a misdemeanor?
Answer: This is an excellent question. The statute of limitations has run out on misdemeanors. The New York district attorney can proceed only with felonies, which have a five-year statute of limitation. Trump would need to waive the time bar on misdemeanors in order to present them as an option (“a lesser included offense”). Most defendants would seize the opportunity to tempt the jury with a compromise and remove the risk of prison. But Trump cannot contemplate a guilty verdict on anything, so he has not agreed to give the jury the misdemeanor option. Trump’s ego once again may be his undoing.
A reader asks: If Trump is found guilty, do you have a suggestion as to the kind of sentence Justice Juan Merchan should impose?
Answer: First-time offenders often get no jail time. However, considering the gravity of the crime (i.e., its impact on a national election), his contemptuous behavior, his civil judgments (including for sexual assaulting E. Jean Carroll) and his habitual threats of violence, a sentence of six months or so would be entirely justified.
A reader asks: Why is it that so many people today can’t seem to understand how bad of a role model Donald Trump is? Didn’t their parents teach them anything about being civil toward others and about how you can tell a lot about a man’s character by how he treats others? What happened to the Golden Rule (do unto others as you would have others do unto you)?
Answer: Unfortunately, some people seek a thuggish figure as their champion. They confuse rudeness with strength, bluster with confidence. Trump entices his followers with an aura of power, willingness to pulverize opponents and indifference to codes of conduct. His followers love him because of his persona, not in spite of it. When his outlandish crowd estimates get debunked or boos rain down on him at the Libertarian Party gathering, he suffers not just a personal humiliation but a political injury.
A reader asks: How do we get through to Fox News and One America News viewers? I was surprised by how many questioners wondered why President Biden is so unpopular. Just watch Fox News or OAN, and you’ll realize their viewers only hear that Biden is the worst, the weakest, the dumbest, most socialist, etc. president.
Answer: Those viewers who are unwilling and unable to get information any other way (e.g., watch a debate for themselves, read a major newspaper) may be unreachable. However, Democrats need to capture the voters who are still open to other sources of information and those who listen to no news whatsoever. The latter might not start paying attention until September!
A reader asks: How does Vice President Harris factor in? Pro and con? Given Biden’s age, I’m surprised this isn’t drawing attention.
Answer: Voters simply don’t vote for the vice president; they vote for the top of the ticket. While Harris has her critics, she is doing a bang up job engaging with women and younger voters on issues like abortion and guns. That could make all the difference in close swing states.
A jury will decide Trump’s fate in the New York business falsification case. What a contrast between the New York courts and the federal judiciary. Judge Aileen Cannon has frozen Trump’s criminal Espionage Act case. The Supreme Court is in one of the worst ethical scandals in its history. Meanwhile, it delays and delays in rendering a decision on absolute immunity, only adding to the impression that the entire court has been corrupted. The dire need for federal court reform has never been more obvious.
A Daily Beast headline reads: “Trumpworld Claims 25,000 People Attended His Rally. Aerial Shots Show Otherwise.” The headline is concise, informative and, most important, reveals and debunks a Trump lie. The first paragraph is just as strong: “Trumpworld is once again splintering from reality. This time, the diversion relates to counting — specifically, how many people attended Donald Trump’s rally in the Bronx on Thursday.”
Trump’s constant lies — about crowds, polls, past elections, his own accomplishments and more — are meant to create a false image of power and invincibility. Too often, right-wing media present his lies as simply one version (or even the only version!) of reality, as when an obviously exaggerated crowd size for a New Jersey gathering made the rounds.
Refusing to play into Trump’s delusions of grandeur is key to avoiding false equivalence and the façade of normalcy upon which the MAGA movement depends.
Justice Elena Kagan’s dissent in the recent racial gerrymandering case, Alexander v. South Carolina State Conference of the NAACP, provides a compelling rebuke to the near-obliteration of the Voting Rights Act wrought by ethically compromised Alito’s majority opinion. Given Alito’s identification with white Christian nationalists, the majority opinion comes as no surprise. But Kagan refuses to accept that this is a good faith application of constitutional law:
The majority picks and chooses evidence to its liking; ignores or minimizes less convenient proof; disdains the panel’s judgments about witness credibility; and makes a series of mistakes about expert opinions. The majority declares that it knows better than the District Court what happened in a South Carolina map-drawing room to produce District 1. But the proof is in the pudding: On page after page, the majority’s opinion betrays its distance from, and lack of familiarity with, the events and evidence central to this case.
As with too many radical departures from precedent, the majority has flipped the law on its head simply because it has six votes. “To be fair, we have seen all this once before — except that it was in a dissent,” Kagan continues. “Just seven years ago, this Court decided another racial-gerrymandering case, strikingly similar to this one. In Cooper v. Harris, the Court rejected the State’s request for an alternative-map requirement; the dissent vehemently objected.”
She also calls out the majority for stacking the deck against African American voters:
In every way, the majority today stacks the deck against the Challengers. They must lose, the majority says, because the State had a “possible” story to tell about not considering race — even if the opposite story was the more credible. And they must lose again, the majority says, because they failed to offer a particular form of proof — which they did not know would be relevant and which this Court recently told plaintiffs was not required. It does not matter that the Challengers offered extensive evidence, including expert statistical analyses, that the State’s districting plan was the product of racial sorting. It does not matter that the State, by way of response, offered little more than strained and awkward denials. It does not matter that three judges — entitled to respect for their factual findings — thought that those denials were not believable, and did not put a dent in the plaintiffs’ proof. When racial classifications in voting are at issue, the majority says, every doubt must be resolved in favor of the State, lest (heaven forfend) it be “accus[ed]” of “offensive and demeaning” conduct.
The evisceration of voting rights that Roberts initiated in Shelby County v. Holder predictably initiated a full-scale attack on minority voting rights and power. Until a new court majority can correct the gross errors of Roberts’s court (as the Warren Court did in reversing Plessy v. Ferguson), White Republicans will continue to enjoy an unfair advantage in voting power. In the meantime, at least Kagan has the nerve to call out the majority’s bad-faith handiwork.
Next week, I’ll have my online chat, so please submit your questions. Questions submitted after next Wednesday will go to my next mailbag newsletter.
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