The extremist, Trump-packed majority of the U.S. Supreme Court exceeded itself in handing down markedly partisan, out-of-the-mainstream rulings seemingly void of any principle beyond owning the libs. It appears that they have every intention of repeating that performance in the new session that begins Oct. 3.
The degree to which the conservatives have become just another arm of the conservative movement, the ivory tower version of Fox News, is encapsulated in one case from last session, Kennedy v. Bremerton School District. That’s the praying football coach case. The one in which the majority played so fast and loose with the facts that Justice Sonia Sotomayor felt compelled to fact-check them in her dissent, including with photographs to show just how perversely the majority twisted the facts of the case.
Where the majority said that the coach, Joseph Kennedy, “prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters,” and ”offered his prayers quietly while his students were otherwise occupied,” Sotomayor included a picture to refute that assertion. “The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer at the same time and location. The Court ignores this history.”
What the court was ignoring was the truth, a truth that was inconvenient for the outcome they were engineering.
As Seattle Times columnist Danny Westneat documents in a follow-up to the story, Justice Samuel Alito even repeatedly refused to acknowledge that Kennedy’s lawyer was lying in his presentation to the court. “’The record is clear that Coach Kennedy was fired for that midfield prayer,’ lawyer Paul Clement told the nine justices in the first 15 seconds of the oral arguments of the case in April. The words ‘fired,’ ‘fire’ or ‘firing’ were used 16 times in the hour and a half session,” Westneat writes.
But he wasn’t fired. The school district’s lawyers tried to argue over and over again in front of the court. He was suspended with pay toward the end of the 2015, and then didn’t reapply for his job for the 2016. The school district’s lawyers kept trying to correct that record, and Alito finally shut them down, interrupting one lawyer who was trying to present the facts by saying: “I know that you want to make this very complicated.” Alito then proceeded to ask about the coach being fired, six times.
The school district in Washington state was ordered to rehire Kennedy even though he hadn’t been fired in the first place. They’ve been trying, Karen Bevers, spokesperson for Bremerton schools, told Westneat. “He’s had the paperwork for his reinstatement since August 8th, and we haven’t gotten so much as a phone call.”
Kennedy is making a lot more money being a “conflict entrepreneur,” a term coined by Scott Green, the president of the University of Idaho, to describe “those who earn their living by scaring people with such illusions” with these kind of fake stories. One suspects by all the Fox News appearances Kennedy conducted before the decision was handed down that this was his end goal with the stunt from the get-go.
Since the ruling, Kennedy’s been doing the right-wing celebrity circuit, meeting in Alaska with former Vice President Mike Pence and Franklin Graham, the evangelist; being presented an engraved rifle by the American Legion at their Milwaukee convention; even hanging out at Trump’s New Jersey golf course. “‘Place a PR/Publicity Request,’” invites his personal website, where he’s known as Coach Joe,” Westneat notes, because of course he has a PR page.
That’s one of the most blatant frauds of the last session of the Supreme Court. They’ve teed up another for the new session: the “independent state legislature theory,” in a case brought by North Carolina Republicans. A case based on a 200-year old fraud.
Ethan Herenstein and Brian Palmer from the Brennan Center for Justice at NYU Law tell the story of how the most notorious fraud of the Constitutional Convention is being used to potentially upend democracy as we know it.
The story starts at the 1787 Constitutional Convention, when an ambitious young South Carolinian named Charles Pinckney submitted a plan for a new government. We don’t know exactly what was in Pinckney’s plan, because his original document has been lost to history. The Convention records, however, reveal that the framers hardly discussed Pinckney’s plan and, at key moments, rejected his views during the debates.
It transpires that all the documents from the convention were sealed for a few decades, until the government decided to publish them in 1818 as a record for history. Up pops Pinckney with a document he claimed was his original plan, but was actually a barely-altered version of the adopted U.S. Constitution. James Madison debunked the draft, pointing out the many ways in which it was a clear fraud in his own notes and papers from the convention. It has continued to be called out as a fraud, though it’s still out there kicking around.
John Franklin Jameson, an early president of the American Historical Association, observed back in 1903, “The so-called draft has been so utterly discredited that no instructed person will use it as it stands as a basis for constitutional or historical reasoning.” Since then, the document has become, in the words of a modern-day researcher, “probably the most intractable constitutional con in history.”
And yet, the Republican North Carolina legislators have chosen to use this con in their brief, to try to argue that in 1787 the founders intended to give state legislatures the ultimate authority in conducting federal elections. Where the Constitution actually does turn over elections administration to the states, it does so “subject to the ordinary checks and balances found in state constitutions” such as governors and state courts.
The North Carolina legislators’ brief “describes Pinckney’s version of the Elections Clause as the ‘earliest reference to the regulation of congressional elections,’ even though it was clearly drafted 31 years after the curtains fell on the Constitutional Convention and is the product of a well-established falsehood,” Herenstein and Palmer write. Which proves that the North Carolina Republicans are about as discerning as Donald Trump when it comes to hiring lawyers.
What is shocking in all of this, though, is that the U.S. Supreme Court accepted this challenge, and that four of the six conservative justices—Alito, of course, as well as Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh—sitting on the court now have already indicated they support the argument from North Carolina. This could upend elections as we know them, giving Republican-run legislatures free rein to pass even more extreme gerrymanders and voting restrictions.
What it shows is that there is indeed a major legitimacy problem on this court. Chief Justice John Roberts has tried to refute that glaring problem complaining that “simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”
Justice Elana Kagan, however, put the lie to that. “Judges create legitimacy problems for themselves … when they instead stray into places where it looks like they’re an extension of the political process or when they’re imposing their own personal preferences,” she said last week, seemingly in response to Roberts.
This court’s conservative majority has definitely strayed and definitely allowed themselves to become and extension of the right wing. Nothing proves it more than the extent to which they will accept out-and-out, provable fraud as the basis for their wildly out-of-the-mainstream actions. They simply must be thwarted, and expanding the court is the most expedient way to do so.
Donald Trump and his MAGA allies came close to overthrowing our democracy on January 6, and they will try again if they win in 2022. The best thing you can do is to help get out the Democratic vote for the midterms, and we need everyone to do what they can. Click here to find all the volunteer opportunities available.
Good judges are more important now than ever. In some states, judges are on the ballot this November. Tune in to The Downballot to listen to Justice Richard Bernstein talk about what being on the Michigan Supreme Court has been like, and how his re-election campaign is shaping up.