New Statesman: The divided heart of the GOP

Even then, a knife’s-edge majority will leave conservative Democrats such as West Virginia’s Joe Manchin arbiters of the Democratic policy agenda. Biden’s ambitious healthcare plan will die on the vine. Noises about changing the rules of the electoral game to favour Democrats (packing the conservative Supreme Court, awarding statehood to Washington, DC and Puerto Rico to counter the Senate’s “anti-democratic” – that is, anti-Democratic – bias) have already quieted to murmurs. [...]

Where does all this leave the Republican Party? A succession is beginning under obscure portents. The party was not given the cauterising rejection that its most anti-Trump elements were hoping for. A resounding loss would have made it easier for the Never-Trump exiles to return triumphant, bringing with them a more collegial, “compassionate conservatism” – and perhaps also a return to the orthodoxies Trump rejected: fiscal discipline, free trade with China, fewer compunctions about keeping troops in Afghanistan. [...]

The day Texas turns Democrat has been delayed for the umpteenth time: expect it to be delayed to the Greek calends. Meanwhile, where Democrats have made electoral inroads, as in Georgia, this has not been down to racial-historical notions of “demographic destiny”, but the political efforts of figures such as Stacey Abrams, who has become the party’s most valuable organiser in the Deep South. In other areas, such as Arizona and the Rust Belt, Democratic gains have come from the increased white support in the anti-Trump suburbs. [...]

To overturn this precedent would not end abortion in the US, but it would mean many heartland Americans would no longer feel that laws they disagreed with were being imposed on them by Washington. The pre-Trump model of the party, marrying secular suburban businessmen with zealous evangelicals, might cease to function. Without this moral motivation, the movement would be forced to rely more on economic, cultural – or racial – grievance, with uncertain prospects of success.

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Vox: How Mitch McConnell is changing the Democratic Party

 And oh, what a difference McConnell has made. He will go down as one of the most consequential Senate leaders in history. But his legacy isn’t defined by bills passed or pacts struck. McConnell’s legislative record, in terms of both his accomplishments and those he’s shepherded through as leader, is meager. He has passed tax cuts, cut regulations, and confirmed judges. He failed to repeal Obamacare, shrink or restructure entitlements, or pass infrastructure or immigration reform. Historians will not linger long over the laws McConnell passed. As McConnell himself has said, his most consequential decision was an act of negation: blocking Merrick Garland from being appointed to the Supreme Court. [...]

Under McConnell, the Senate has been run according to a simple principle: Parties should use as much power as they have to achieve the outcomes they desire. This would have been impossible in past eras, when parties were weaker and individual senators stronger, when political interests were more rooted in geography and media wasn’t yet nationalized. But it is possible now, and it is a dramatic transformation of the Senate as an institution, with reverberations McConnell cannot control and that his party may come to regret. Indeed, McConnell’s single most profound effect on the Senate may be what he convinces Democrats to do in response to his machinations. [...]

It worked that way because the parties, and their Supreme Court nominees, were different than they are now. The parties were ideologically mixed rather than ideologically polarized, and Supreme Court nominees were ideologically unpredictable rather than heavily vetted and ideologically consistent. From the 1950s through the 1990s, knowing the party that nominated a justice told you little about how that justice would vote. All of that lowered the stakes on each nomination. [...]

What Democrats now believe is McConnell won’t let them govern if they win, and in the aftermath of Garland and of Ruth Bader Ginsburg’s death, he won’t show them any quarter if he wins. Republicans, to be fair, believe the same about Democrats. Compared to the Senates of yore, both sides are right. McConnell has gone further, faster, than the Democratic leaders in torching old precedents and making the realpolitik principles of the new era clear. But in doing, he’s potentially done something that liberal activists and pundits were never able to achieve: convince Senate Democrats that the Senate is broken, and that new rules are needed.

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99 Percent Invisible: Policing the Open Road

Before the twentieth century, most Americans rarely came into contact with police officers. But with more and more drivers behind the wheel, police departments rapidly expanded their forces and increased officers’ authority to stop citizens who violated traffic laws. The Fourth Amendment—the constitutional protection against unreasonable searches and seizures—did not effectively shield individuals from government intrusion while driving. Instead, jurists interpreted the amendment narrowly. In a society dependent on cars, everyone (the law-breaking and law-abiding alike) would be subject to discretionary policing. Ultimately, Seo’s remarkable book shows how procedures designed to safeguard us on the road actually undermined the nation’s commitment to equal protection before the law. 

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National Public Radio: It's More Than Racism: Isabel Wilkerson Explains America's 'Caste' System

 Pulitzer Prize-winning author Isabel Wilkerson says racism is an insufficient term for the systemic oppression of Black people in America. Instead, she prefers to refer to America as having a "caste" system.

Wilkerson describes caste an artificial hierarchy that helps determine standing and respect, assumptions of beauty and competence, and even who gets benefit of the doubt and access to resources. [...]

That means that until arriving here, people who were Irish, people who were Hungarian, people who were Polish would not have identified themselves back in the 19th century as being white, but only in connection to the gradations and ranking that occurred and was created in the United States — that is where the designation of white, the designation of Black and those in between came to have meaning. [...]

One of the examples, a Japanese immigrant petitioned to qualify for being Caucasian because he said, "My skin is actually whiter than many people that I identified as white in America. I should qualify to be considered Caucasian." And his petition was rejected by the Supreme Court. But these are all examples of the long-standing uncertainties about who fits where when you have a caste system that is bipolar [Black and white], such as the one that was created here. [...]

It turned out that German eugenicists were in continuing dialogue with American eugenicists. Books by American eugenicists were big sellers in Germany in the years leading up to the Third Reich. And then, of course, the Nazis needed no one to teach them how to hate. But what they did was they sent researchers to study America's Jim Crow laws. They actually sent researchers to America to study how Americans had subjugated African Americans, what would be considered the subordinated caste. And they actually debated and consulted American law as they were devising the Nuremberg Laws and as they were looking at those laws in the United States.

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Slate: Conservatives Slam “Swamp-Infected” John Roberts After Nevada Church Ruling: “National Disgrace”

Cruz was reacting to the decision involving Calvary Chapel Dayton Valley in Dayton, Nev., which argued that the cap imposed during the coronavirus pandemic was unconstitutional. The Supreme Court disagreed in a 5-4 decision that rejected the Christian church’s request that it should be subject to the same rules that allow casinos and restaurants, among other businesses, to operate at 50-percent capacity. Roberts sided with the liberal majority and denied the request without an explanation, which is standard practice for emergency motions. In contrast, the four more conservative members of the court filed three strongly worded dissents saying they would have granted the church’s request while the court considered the case more carefully. “The Constitution guarantees the free exercise of religion,” Justice Samuel Alito wrote. “It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance. But the Governor of Nevada apparently has different priorities.” [...]

The anger at Roberts expressed on social media Saturday morning marks the latest chapter of how conservatives have been attacking the chief justice in light of his recent decisions, including striking down a restrictive abortion law in Louisiana. Trump’s campaign is trying to fuel that anger to motivate conservative voters who may be disenchanted with the president to support his reelection campaign. Some have doubts about whether that can amount to a winning strategy.

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CGP Grey: Supreme Court Rules on Faithless Electors in the Electoral College

TLDR News: Why The Supreme Court's Major LGBTQ Ruling Was so Shocking: What it Means for the Future

Yesterday the US supreme court made a major ruling in favour of LGBTQ+ rights. The decision was good news for activists, but it also represented a major surprise, with two conservatives justices siding with the four more liberal judges leading to a major 6-3 decision. In this video we explain what happened, the implications and why the move was such a shock.

Vox: Governors are starting to close their borders. The implications are staggering

As the Supreme Court recognized more than 170 years ago, “we are one people with one common country. We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own states.” The right of all US citizens to travel freely among the states, the Court later explained in United States v. Guest (1966), “was conceived from the beginning to be a necessary concomitant of the stronger union the Constitution created.” [...]

Thus, there are two potential reasons why Abbott’s order may be legitimate. The first is that it applies to Texans and non-Texans alike — a Houston resident who returns home from a trip to Newark will spend two weeks in isolation, just like a New York resident who travels to Dallas to visit a family member. The second is that Abbott has a “substantial reason” for imposing this order. He believes that it will reduce the number of people who enter Texas carrying a terrible disease. [...]

The premise of Edwards — indeed, the premise of the post-New Deal order — is that the federal government would provide a baseline of health, prosperity, and security to the nation as a whole. In return, the states would give up their role as the sole providers of “assistance to the needy,” and with it their power to close their borders to poor Americans.

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Freakonomics: Does the President Matter as Much as You Think?

We asked this same question nearly a decade ago. The answer then: probably not. But a lot has changed since then, and we’re three years into one of the most anomalous presidencies in American history. So once again we try to sort out presidential signal from noise. What we hear from legal and policy experts may leave you surprised, befuddled — and maybe infuriated.

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Vox: Ruth Bader Ginsburg probably just dealt a fatal blow to the Equal Rights Amendment

Three-fourths of the states, or 38 total, are required to amend the Constitution. Last month, Virginia became the 38th state to ratify the ERA and one of only three states to do so since 1977 — but there’s a catch. Congress imposed a 1982 deadline on states hoping to ratify the ERA, though there’s doubt about whether this deadline is binding.[...]

Ginsburg’s comments are likely to be the death knell for the ERA. Without Ginsburg’s vote, it’s tough to imagine that five members of the Supreme Court would agree the ERA was properly ratified. And while Congress could, in theory, start the ratification process over again, it’s also hard to imagine two-thirds of the House and Senate agreeing to do so in an age when Congress often struggles to perform basic functions like funding the government. [...]

That suggests that if Congress were to decide that the ERA was properly ratified, the courts would be bound by that decision. But Congress has not done so, and Senate Majority Leader Mitch McConnell says he is “personally not a supporter” of the ERA, so he may simply refuse to call a vote on whether the ERA is part of the Constitution.

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euronews: 'Faithless elector': Supreme Court will hear case that could change how presidents are chosen

The answer to the question could be a decisive one: are the electors who cast the actual Electoral College ballots for president and vice-president required to follow the results of the popular vote in their states? Or are they free to vote as they wish? [...]

More than half the states have laws requiring electors to obey the results of the popular vote in their states and cast their ballots accordingly. The problem of what are known as "faithless electors" has not been much of an issue in American political history, because when an elector refuses to follow the results of a state's popular vote, the state usually simply throws the ballot away. [...]

States are free to choose their electors however they want, the court said, and can even require electors to pledge their loyalty to their political parties. But once the electors are chosen and report in December to cast their votes as members of the electoral college, they are fulfilling a federal function, and a state's authority has ended.

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UnHerd: Will the Evangelicals dump Trump?

This was Donald Trump’s third appearance at the convention in the last four years, a necessity when 81% of white Evangelicals voted for him in 2016. After sticking with Trump through sexual assault accusations and scores of half-truths and outright lies, it seemed as though nothing could shake their faith in the man; yet an accumulation of factors may be eroding Evangelicals’ enthusiasm for the President, and perhaps even undermining their support altogether. [...]

Even religiously conservative politicians are starting to break ranks. Retiring Illinois Rep. John Shimkus, who gained notoriety for using the Bible to dismiss climate change, officially withdrew his support for the President over the “despicable” decision regarding Syria. And prominent conservative Christian media personality Erick Erickson tweeted at Nancy Pelosi to speed up the impeachment process so that “perhaps we’ll still have time to save some of the Kurds”. [...]

This betrayal is especially hard to swallow because Christian persecution in the Middle East has been a prominent issue for American conservative Christians, and many have therefore been keeping track of how the Kurds became the major defenders of Christian minority populations in Iraq and Syria. American Evangelicals fear these Middle Eastern Christians may now be endangered by a policy that decimates and alienates the Kurds and allows for the resurgence of ISIS. [...]

Yet even with Trump’s apparent success in reshaping the courts, Evangelicals may be in for a disappointment. New Supreme Court Justices Neil Gorsuch and Brett Kavanaugh have pushed the Court somewhat to the Right, but they haven’t been the firebrand conservatives that many conservatives were looking for. The new justices may prove unwilling to halt the trend of advances made to LGBT rights, and sexual identity may be ruled a federally protected class.

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The New Yorker: The Right Wing’s War on the L.G.B.T.Q. Community

An Arizona Supreme Court ruling on Monday provided further evidence that gay rights are under siege in this country. Other recent events show that the Trump Administration is leading the assault. The Arizona court held that Brush & Nib Studio, a Phoenix-based company that makes customized wedding invitations, has the legal right to reject a gay couple as customers. Even though Phoenix has a local law that prohibits discrimination against the L.G.B.T.Q. community, the court ruled that the religious convictions of the business owners exempted them from the obligation to treat all customers equally. According to the court, designing wedding invitations is a creative act; to compel the owners to design an invitation against their will violates their rights both to freedom of religion and freedom of speech.

The opinion treats the business owners—two women—as a beleaguered minority. Their “beliefs about same-sex marriage may seem old-fashioned, or even offensive to some,” the court wrote. “But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone.” This, to put it charitably, is nonsense. The owners of Brush & Nib are free to believe anything they want. What they should not be allowed to do is to use those beliefs to run a business that is open to the general public but closed to gay people.  [...]

Of course, it’s not clear that the Supreme Court will uphold these discriminatory practices. In the famous Masterpiece Cakeshop case, in 2017, which involved a Colorado baker who had refused to make a wedding cake for a gay couple, the Court dodged the issue. (The Court ruled for the baker, on the ground that Colorado officials, specifically the Colorado Civil Rights Commission, had behaved improperly, in a non-neutral manner.) But anyone counting on the current Supreme Court to protect the rights of any minorities, including the L.G.B.T.Q. community, is almost certainly looking for disappointment. That may become even clearer this term, when the Justices hear three cases on the question of whether the Civil Rights Act forbids employers from discriminating on the basis of sexual orientation and gender identity as it does on the basis of race or sex. These cases will be the first to address the rights of gay Americans since Justice Anthony Kennedy, who was clearly supportive of them, stepped down and was replaced by Justice Brett Kavanaugh, who is not. The President and his allies boast of their tolerance and enlightenment on L.G.B.T.Q. issues, but facts stubbornly suggest that they are hurting the cause in every way they can.  

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Vox: The roots of America's democracy problem (Nov 20, 2018)

FiveThirtyEight: The Supreme Court Might Have Three Swing Justices Now

Now that this year’s Supreme Court term is over, we know that Kavanaugh is shaping up to be a solidly conservative justice — he barely beat out Roberts as the court’s new median and voted most frequently with Roberts and Justice Samuel Alito. And although Roberts did step several times into the role of “swing” justice, he wasn’t the only conservative justice who joined the liberals over the course of the term. Although he wasn’t in the middle ideologically, Justice Neil Gorsuch, Trump’s other nominee, was actually the most likely to join the liberals in closely decided cases.1 In fact, each of the conservative justices joined the liberals in a 5-4 or 5-3 decision at least once. With a newly cemented conservative majority on the court, the days of a single “swing” justice may be over. [...]

Last year, we wrote that Roberts would likely land at the ideological center of the court in Kennedy’s absence, and he did — but so did Kavanaugh, who voted in almost total lock-step with Roberts. In fact, Kavanaugh was actually slightly closer to the center than Roberts was, according to their Martin-Quinn scores, a prominent measure of judicial ideology calculated by scholars Lee Epstein and Andrew Martin of Washington University in St. Louis and Kevin Quinn of the University of Michigan using data from the Supreme Court Database.

Kavanaugh’s score this term is very similar to Kennedy’s score from the last term, but Kennedy was somewhat unpredictable in his last few years on the bench, occasionally shifting into liberal territory. The fact that Roberts and Kavanaugh are now at the median means the court’s ideological center will likely be solidly conservative going forward. The shift, though, didn’t put the court in dramatically new territory, since Kavanaugh’s score is still similar to Kennedy’s in many of the years when he was the median justice.

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Politico: John Roberts Just Called Out the Trump Administration for Lying

But Thursday’s decision also has broader implications for the Supreme Court’s entire relationship to the Trump administration. One of the administration’s distinctive characteristics is its approach to truth and lying. All administrations sometimes hide, shade or slant the truth—and occasionally lie outright. The present administration is different in that it lies regularly, blatantly, heedlessly. In the census case, the Supreme Court, for the first time, called the administration on this behavior—ever so politely and by the slimmest of margins. But still. Now the question is whether it will have the stomach to do so in other cases—or even in this case, if it comes back to the court in the near future. [...]

One problem with that argument, though, is that the Supreme Court has previously held that where there is a strong indication of bad-faith government action, a court can look deeper. And today, a majority composed of Chief Justice Roberts and the four more liberal justices called shenanigans. Quoting the legendary judge Henry Friendly, for whom Roberts once clerked, the chief justice wrote that the Supreme Court is “not required to exhibit a naivete from which ordinary citizens are free.” In other words, if everyone can see that the administration is lying, the court isn’t required to pretend that it alone is blind. [...]

Why did the chief justice come out the other way this time? There are multiple possible explanations. Maybe it matters that one case was (at least ostensibly) about national security and the other was not. Maybe it matters that in the census case the person whom the chief justice had to call a liar (circumspectly—words like “lie” do not appear in the opinion) was a Cabinet secretary rather than the president himself. Maybe the evidence of deceit was more damning in the census case—though it was pretty clear in the entry-ban case, too. Maybe the lower court’s surpassingly thorough documentation of the problems with the administration’s position made the chief justice think he couldn’t pretend not to know without looking foolish. Whatever the case, this time Roberts refused to play the see-no-evil role.

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Slate: John Roberts Rejects the Census Citizenship Question Because Trump Officials Lied About It

The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project. The Secretary’s Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to “find the best rationale.” The Director initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA. After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency. The possibility that DOJ’s Civil Rights Division might be willing to request citizenship data for VRA enforcement purposes was proposed by Commerce staff along the way and eventually pursued. [...]

Theoretically, then, Ross can still find a way to insert the question into the census. But two factors work against him. First, the Trump administration has repeatedly told the courts that it must begin printing the census forms on June 30. It presented this deadline as essentially non-negotiable, apparently hoping to pressure SCOTUS into quickly upholding the question. That tactic may have now backfired, because the administration must print the forms in three days or else reveal it was lying about its timeline. (Census officials have said that the printing could be delayed until October, though that still may not leave the government enough time.) [...]

Thursday’s decision is complex and, at times, confusing. The liberal justices wrote separately to declare that the citizenship question should be blocked altogether as illegally “arbitrary and capricious.” The conservative justices wrote separately to assert that the court should afford more deference to the Commerce Department—an argument that reaches the heights of hypocrisy, especially in light of their recent assault on judicial deference to agencies. So neither bloc got exactly what it wanted. But make no mistake: Roberts’ compromise gives the liberals a qualified victory, one that should keep the citizenship question off the 2020 census. Ross’ own incompetence appears to have doomed his discriminatory scheme.

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Philosophy Tube: Are Rules Made to Be Broken?

Are the laws of the land made to be broken? How does philosophy, and activists like Rosa Parks, tell us what good and bad laws are?

Today in Focus: Who is trying to ban abortion in the US?

Janet Porter believes life begins at conception and has spent the last 10 years lobbying on the fringes of the US abortion debate. Many on the left and right despise her, but in Donald Trump’s US, she has just had one of the biggest victories of her life. Porter successfully lobbied Ohio’s legislature to pass one of the strictest abortion bans in the world in April – the “heartbeat bill” would make the procedure illegal about six weeks into pregnancy. Alabama followed in May with an even more restrictive version, outlawing abortion at any stage of pregnancy, with no exceptions for those resulting from rape or incest. Six-week bans have been introduced in 15 states, although none are currently in effect.

Jessica Glenza, the Guardian’s US health reporter, tells Anushka Asthana about her meeting with Porter. With the recent appointment of two Trump-nominated supreme court justices and a growing number of anti-abortion federal judges, the ultimate aim of anti-abortion activists and lawmakers is to mount a challenge to Roe v Wade, the 1973 court decision that legalised abortion in the US.

And: Serena Daniari on why achieving a higher voice can be essential to embracing a female identity, and can provide a cloak of protection from bias and bigotry.

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BBC: Abortion in US: What surprise Supreme Court ruling means

A majority of the justices sided with Indiana, holding that the burial provision didn't place an "undue burden" on a woman's right to an abortion and it advanced a legitimate interest of the state, even if the law wasn't "perfectly tailored" to address foetal remains in all circumstances. [...]

With nearly a dozen states enacting new abortion regulations and outright prohibitions in 2019, this won't be the only opportunity for the Supreme Court to reconsider whether there is a constitutional right to abortion.

Anti-abortion activists, and state legislatures with anti-abortion majorities, may believe that with the addition of Mr Trump's appointments, there is a majority on the court willing to finally put a stake through the heart of Roe.

Tuesday's decisions, however - made with little fanfare and no advanced notice - could be an indication that a majority of the justices on the court are in no hurry to reverse 46 years of precedent.[...]

Also on Tuesday an abortion clinic in St Louis announced that it may be forced to stop performing the procedure on Friday because the state had yet to renew its licence. If that happens, Missouri would become the first state since Roe was decided to have no abortion clinics within its borders. Five other states have only one.

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