Nel's New Day

June 29, 2019

Supreme Court Moves to Eliminate Democracy

The debates took up much of the media air last week, but the Supreme Court decisions are what will permanently change democracy in the United States. The two biggest one came out Thursday, the last day of the session so that the conservatives could quickly get out of town. Chief Justice John Roberts now has a one-two-three punch against voting with his three major decisions to suppress the vote. In the first, Citizens United, Roberts gave donors the right to give unlimited amounts of “dark money” to political candidates. His elimination of the almost 50-year-old Voters Rights Act made sure that states could keep minorities and the poor from voting in the states that were usually inclined to discriminate against these populations.

This Thursday, Roberts guaranteed that politicians can select their own voters instead of the constitutional position that voters should pick their candidates, and courts can’t stop gerrymandering even if it promises partisanship. Roberts’ swing vote in Rucho v. Common Cause blocking federal courts from preventing the most aggressive partisan gerrymandered districts that computers can create. In a circular pattern, Republicans pick districts so that the districts will pick Republicans.

The conservative majority used the excuse that some acts can violate he Constitution but are beyond the judiciary to determine any violations. Roberts’ reasoning that courts cannot require states to draw legislative maps somewhat proportional adversely twisted the definition of “proportional representation” for voting, meaning legislative representation should track electoral results. He allows states where Democrats win 54 percent of the vote to give Republicans 65 percent of the legislative seats, and he skipped the part of the U.S. Constitution that prohibits states from denying anyone “equal protection of the laws.” The First Amendment also prohibits viewpoint discrimination—aka gerrymandering. For elections, Roberts views the amendment narrowly while he uses it for unlimited expenditures to influence elections.

The swing vote in Department of Commerce v. New York, Roberts voted against the conservative four justices. The racist policy by Dictator Donald Trump (DDT) to rig the census by requiring all people in the U.S. to answer a question of their citizenship provided more voter suppression by shrinking districts with Latinx, designed to allocate congressional seats in a way that “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.” The U.S. census is ordered for all “people” in the nation, not citizens or legal residents.

Experts testified that the citizenship question “could seriously jeopardize the accuracy of the census,” because “people who are undocumented immigrants may either avoid the census altogether or deliberately misreport themselves as legal residents.” Meanwhile, legal residents “may misunderstand or mistrust the census and fail or refuse to respond.” The Census Bureau “calculated in January 2018 that adding a citizenship question to the 2020 census was likely to lead to a 5.1% differential decrease in self-response rates among noncitizen households.” The purpose of the census covers a lot of territory from determining the number of legislators, both state and federal, and the amount of federal funding for different areas.

Commerce Secretary Wilbur Ross lied about the question’s inception and reason and falsely claimed that it was necessary to help the DOJ enforce the remaining portion of the Voters Rights Act. Evidence, however, “showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.” This evidence suggests that “the Secretary had made up his mind to reinstate a citizenship question ‘well before’ receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.”

Although Roberts voted that the question had to go back to state courts for another look, he denied that it should be removed because Ross didn’t follow a federal law requiring a three-year notice to Congress about “the subjects proposed to be included, and the types of information to be compiled.” The ruling did not state that the decision was “substantively invalid” but that “agencies must pursue their goals reasonably,” and “reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action.” Remanded back to the New York district court, the Supreme Court decision overturned a ruling that the question is “arbitrary and capricious” under the Administrative Procedures Act and upheld the constitutionality of a citizenship question under the Enumeration Clause of the Constitution. The ruling determined the question legal if the Commerce Department can come up with a good enough reason.

DDT is so furious about the citizenship question decision that he wants to (unconstitutionally) delay the census until he gets his way. Supposedly, census forms printing must be started next week to complete them in time, but Commerce Department could wait until October 31 to start printing the questionnaire if it can get “extraordinary resources” allocated by Congress.

In a filing last Monday, Maryland District Court Judge George Hazel stated the evidence “potentially connects the dots between a discriminatory purpose—diluting Hispanics’ political power—and Secretary Ross’s decision” to add a citizenship question with the argument that DDT violated the Constitution’s equal protection clause. Although the Supreme Court decision may stop the Maryland lawsuit, it can reappear if Ross returns with new reasons.

DDT’s court continues its pattern: conservative decisions are sweeping ones that change laws; liberal ones are narrow with little relief except in one specific situation.

In the census decision, Justice Clarence Thomas, on the court thanks to Joe Biden’s refusal to listen to women’s statements about Thomas’ sexual harassment, called Judge Jesse Furman a conspiracy theorist for challenging Ross’ lies. Earlier, Thomas had raged about sending a case back to Mississippi for a sixth time in Flowers v. Mississippi because, according to Thomas, prosecutors can strike minorities from a jury on the basis of their race. Neil Gorsuch joined Thomas in his position. Last February, Thomas announced he wants to overturn New York Times v. Sullivan, the landmark 1964 ruling sharply restricting public figures, including government officials, to sue for defamation and get rid of Gideon v. Wainwright, requiring states to provide public defenders for indigent defendants. Gorsuch agrees with that position too. To Thomas, abortion rights equals eugenics.

After another Supreme Court ruling last week, police no longer need a warrant to draw blood from an unconscious person suspected of drinking while driving. Gone is the requirement of a person for an invasive procedure that overturns the 2013 Supreme Court ruling a violation of the Constitution for a nonconsensual blood draw without a warrant in a DUI case.

The 40-foot Christian cross will remain on a traffic median near Washington, D.C. according to six Christian and one Jewish Supreme Court justices. Catholic Justice Samuel Alito wrote that Christian crosses have “secular meaning.” Justice Ruth Bader Ginsberg, dissenting with Justice Sonia Sotomayor, read her disagreement from the bench. [I’m guessing that the Supreme Court would not consider a “secular” Jewish star of David or Islam crescent to replace the “secular” cross.]

The Supreme Court refused to hear a lower court ruling against Alabama’s 2015 abortion law banning “dilation and evacuation,” a common procedure during the second trimester. The high court’s inaction left the law struck down, but it won’t avoid abortion cases forever. Earlier this year, it left in place the requirement for disposing of aborted fetal remains through burial or cremation because of the “sanctity of life.” Nothing about miscarriages. The high court also refused to hear a case from two Kansas men convicted of violating federal law regulating silencers.

In Gamble v. United States, the Supreme Court on Monday also reaffirmed a 170-year-old exception to the Constitution’s double-jeopardy clause, leaving an opportunity for states to prosecute DDT and his campaign officials for issues already prosecuted federally.

In one sane move, Roberts was the swing vote in Kisor v. Wilkie to not overturn a 75-year series of SCOTUS decisions permitting agencies’ reasonable interpretations of their own regulations.

The Supreme Court has started its docket for the upcoming year with a case determining what happens to 700,000 DREAMERS living in the United States because of DACA. Three appeals courts and a district judge have ruled that DDT had no rationale for his attempt to close a program that protects from deportation young undocumented immigrants who were brought to the U.S. as children. Other cases include one from Bridget Kelly and Vill Baroni, convicted of participating in gridlock near the George Washington Bridge and a Montana ruling invalidating a state program offering tax credits for funding scholarships at private schools, including religious schools.

In a 5-4 decision exempting a public access television channel from constitutional requirements, Brett Kavanaugh wrote:

“It is sometimes said that the bigger the government, the smaller the individual.”

Although Kavanaugh didn’t cite his source, the false statement was tracked to the Ayn Randian Atlas Society, refuting Roberts’ common claim that the Supreme Court is not political. Senate Majority Leader Mitch McConnell (R-KY) clearly stated that blockades of Supreme Court nominees are only for Democratic presidents. He smirked while he told an audience that he would “fill it” if a vacancy on the high court appears next year. No longer should “the American people have a voice in the selection of their next Supreme Court justice.”

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