Purple and Black
Taking Independent and Unofficial Back

the supremes, unfortunately not the singing group

Another article on the de-bunked 'independent state legislature' theory that threatens election integrity by allowing state legislatures (not incidentally, the gop controls 30 of these and most of the ones in swing states) to overturn the will of the people.


A description of the debunked theory from LA Times, 6.30.22, article titled 'A debunked legal theory could be used to turn our elections into chaos' (cited in the above article):
For the last three weeks, the Jan. 6 hearings have brought back the sights, sounds and horror of a mob infiltrating the U.S. Capitol in broad daylight, bent on overturning the will of millions of American voters.

Of course, this mass violence is just one of the tactics used by those trying to undermine our democracy. Another tool in play is a legal notion from the most radical fringes of American jurisprudence, a thoroughly debunked idea that anti-democratic forces have been touting heavily since the 2020 elections: the so-called independent state legislature theory.

For the last several years, a small group of conservative legal activists has been trying transform this radical reading of the Constitution into the law of the land.

The theory contorts the Constitution’s elections and electors clauses, which give states the authority to regulate federal elections — to draw the boundaries for congressional districts and to adopt policies like mail voting and early voting, for example — while at the same time empowering Congress to enact federal election laws and override state policy.

That’s how these clauses have been understood for the past 200 years. But proponents of the far-fetched “independent state legislature theory” are now contending that these clauses grant state legislatures near absolute power over the laws governing elections for federal office — leaving state courts, state constitutions, state governors and other state entities powerless to stop even the most extreme gerrymanders and voter suppression laws that a state legislature could devise. It’s just as nutty as it sounds.
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e lately and there are some important cases, like Moore v Harper.

On a different topic: corruption in the court. Senator WH is watching and reporting what he sees.

I haven’t tracked down Whitehouse’s 19 m speech given on the Senate floor. If you track it down, post it please,

 
Recall that, last year, there was a leak of the majority opinion in the Dobbs v. Jackson Women's Health (authored by alito). The conservative justices cried, gnashed teeth and all but declared that the source came from the minority opinion's side (a liberal justice's aide perhaps?) had perpetrated this travesty on the supreme court. Chief justice john roberts set an investigation in motion to discover the source.

Over time, we found out about Alito as source of a previous leak dating back to 2011, Burwell v. Hobby Lobby Stores, Inc.

Come this past Friday, the investigator released the report summarizing the investigation of the most recent leak, Dobbs, complete with a glaring omission: none of the current justices was formally questioned as a potential source and none signed an affidavit declaring they had not leaked the results of the case before the vote.

Why is this important? I'm linking to some articles about it. What I've learned is that there are no ethics rules for supreme court justices and no consequences for unethical actions. Furthermore, far-right forces, using dark money, have successfully commandeered the supreme court. Furthermore, the rot in the supreme court is part of a connect-the-dots picture, which we must endeavor to comprehend as part of a multi-dimensional effort to undermine our institutions and bend them toward an undemocratic, authoritarian-leaning, white supremacist state, or some global phenomenon, of which we can only perceive the dim outlines. Booger. I stumble over words.

In his opening remarks, Whitehouse, D-R.I., contended that a “multi-hundred million dollar covert operation” influences conservative Supreme Court justices at three stages. First, a “gatekeeping organization” Whitehouse didn’t name (which witnesses later identified as the Federalist Society) grooms potential nominees for vacancies on the bench. Second, advocacy groups lobby for votes to confirm a chosen nominee in the Senate. And third, law firms and interest groups — allegedly with the same anonymous backers as the gatekeeper and advocacy groups — file amicus briefs urging the court to decide cases for the benefit of corporate interests.
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The above from SCOTUSblog [3.11.21]: Senate Judiciary holds hearing on "dark money" and Supreme Court

These efforts at swinging the court bring us egregious decisions like Citizens United v. FEC, which enables concealment of sources of unrestricted campaign donations by dark money groups. Btw, as he has done for the last 13 years, Adam Schiff just proposed a constitutional amendment addressing the problems ensuing from that decision: Democrats introduce constitutional amendment to reverse Citizens United campaign finance ruling [The Hill;1.19.23]

I digress.

The report that was just released failed to find the source of the leak. The endeavor might be viewed as farcical, a case where the justices investigated themselves, since no other mechanism exists by which they are held to account.

Posting a few informative pieces.

A press release beneath the dignity of the Court. [Hubbell;1.21.23]

Were The Supreme Court Justices Investigated In The Dobbs Leak Probe? [TPM;1.19.23]
 
This article is about a decision made by SCOTUS last year, Bruen v ____?___ . More generally, it concerns how the philosophy of ‘originalism’, to which the conservative majority on the Supreme Court subscribes, veers away from rational thought. So, in this case, a lower court, the Fifth Circuit (I think- posting from my phone and too tedious to toggle between web pages), decided that the 2nd Amendment right to gun ownership over rides the fact that the dude in the case they were adjudicating had a record of domestic violence and several occasions in which he demonstrated dangerous behavior with a gun. Well, better to read the article [WaPo; 2.4.23]:

Ye Olde Supreme Court? Your Originalism Is Making America Unsafe.
 
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Ohhhhhh… right. So, that’s why chief justice roberts has been silent as a jaybird on questions of conflict of interest involving thomas and gorsuch… a shaft of sunlight breaks through impenetrable cloud cover.
Bleak.
Mixed up my idioms there - naked as a jaybird - and - silent as a mouse - and I’m leaving it, since it’s just right. roberts is virtually naked and if jaybirds are like the blue jays we have here, they’re anything but silent. If they’re quiet, something is definitely wrong.
 
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I didn’t post the story of gorsuch and the fishing lodge in Colorado. Yeah. You know the one. He and co-owners had been trying to sell it for two years without a nibble. Within something like 10 days of his nomination to the supreme court, yippee! Sold!!! See, all those fisher people needed was a tasty little worm 🪱 Then, when the buyer brought cases before the supreme court, they already knew each other. Okay… to be perfectly clear, the reporting I read said they didn’t actually meet in person… but it does smell fishy! And, when you line up all the fish in the other justice’s pockets, it’s all your favorite smelly fish… sardines, mackerel, …
Everything you need to know about Swedish Surstromming
 
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Supreme Court weakens EPA power to enforce Clean Water Act [WaPo; 5.25.23]

The ruling affects one of the most fundamental authorities at the EPA, its ability to extend protections to upstream waters in order to protect downstream water quality for drinking and wildlife. It will prevent the agency from putting federal protections on as much as 118 million acres of wetlands, an area larger than the landmass of California, according to estimates from the environmental firm Earthjustice.

It gives a win to farmers, home builders and other developers that will now probably find it easier to get permits to build, lawyers and trade groups said. And it probably will force the Biden administration to abandon — or at least restart — an effort it began in 2021 to resolve years of uncertainty with new definitions on the type of waterways EPA rules can protect, leaving more of that power up to state governments, lawyers and legal experts said.
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The justices were reviewing for a second time the plans of Michael and Chantell Sackett, who want to build a home on their property near Priest Lake, one of the Idaho’s largest. The EPA says there are wetlands on the couple’s 0.63-acre lot, which makes it subject to the Clean Water Act and allows the government to require permits and impose penalties for violations.
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The ruling is the second major environmental decision by the court in about a year. Last term, the court’s conservative majority restricted the EPA’s authority to curb emissions from power plants.
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Some more information about the case, Sackett v. EPA, from the Natural Resources Defense Council [NDRC]:
What You Need to Know About Sackett v. EPA [nrdc.org; 9.19.2022]
Since 1972, the Clean Water Act has played an essential role in protecting the country’s diverse array of aquatic environments from pollution and keeping them safe for fishing, swimming, and wildlife (not to mention as sources of drinking water for millions of people). And for roughly that same amount of time, the act has also been the target of polluters and developers who would like to limit its regulatory scope. One way they’ve attempted to do so? By focusing on a particular—and pivotal—bit of language found in the law, five simple words that carry enormous legal weight: “waters of the United States” (or WOTUS, for short).
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The Sackett case is about a miniscule issue... a 0.63 acre lot, near a lake in Idaho, but it provided an opportunity to change water protections in a very big way.
 
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Video titled “Corporations Have Been Salivating Over This SCOTUS Decision”, dated 1/16/2024


From the Robert Reich YouTube account description of the above video:
The Supreme Court is hearing two cases that could upend federal regulations designed to protect us. Big corporations are salivating for a ruling that goes their way. Here’s what you need to know
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There are two cases challenging the 'Chevron doctrine'. I don't think the video names the cases. Hope to update later.

The 1984 'Chevron v. Natural Resources Defense Council' case held that, whenever any regulations were unclear, it should be up to the federal agencies, not the courts, to interpret and implement them. The logic is that experts at federal agencies can best determine the finer points of ambiguities in regulations.

These new cases would shift this power to the courts, which appeals to big corporations and banks, whose lawyers can shop around for a sympathetic, activist judge. "A single activist judge could invalidate all the regulations of a federal agency charged with protecting the public.
 
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I've been trying to keep up with all that's going on right now. Even the pros talk about the difficulty in covering all the developments in the last week. The Supreme Court has two cases (maybe more) in front of it right now, which have consequences for the 2024 election. t---- has appealed the two decisions listed below.

1. The 'absolute immunity question': This was decided against t---- by an appelate court in DC. The judges took their time and wrote a 57-page brief . Basically, t---- wants to be declared king. During the hearing (?), one of the 3 judges asked (I'm paraphrasing), "If the president asked Seal Team 6 to take out his election opponent, would he be immune from prosecution?" And, t----'s lawyer, when pressed to the wall, had to say yes, he would be immune. Yep, he can kill his opponent! Yay Putin, you're off the hook! from t----'s POV

Forceful Opinion Repudiates Claim That Trump Can't Be Charged in Election Case [NYTimes; 2.6.24]

SCOTUS has still to announce whether they will take this case. Many experts say that the appeals court decision was very thoroughly written (sorry, I'm a little sketchy on the proper terms to use, e.g. what to properly call the written decision). Apparently, there are some 4 different responses SCOTUS can make. Stay tuned . . . one is to let the lower court's decision stand.

2. The Colorado (and Maine) decisions to omit t---- from the state primary ballot, due to violations of the 14th amendment, section 3 of the Constitution, aka the Disqualification Clause, dating back to the time of Reconstruction. SCOTUS has heard the arguments and is expected to reveal their decision soon. During questioning the justices dodged the question of insurrection, which is referenced in the Disqualification Clause. They were more concerned about every state having the power to decide who would be on the ballot and how that power could be abused in the future, which is the argument the t---- lawyers emphasized (I think . . . ummm,. . . I see myself coming back here to try to straighten out this post).

Just because Colorado and Maine decide to omit t---- from the ballot on the basis of the 14th amendment section 3, doesn't mean t---- is off the ballot in every state. That seems critical to me. And, in most of the reporting I've seen, the question hasn't been answered, so I searched and found this:

No, a presidential candidate doesn't have to appear on ballots in every state to be elected [WNEP;11.13.23 and 1.5.24]

Nice interview, below, with analysis by the lawyer who argued the case:

Trump DISQUALIFICATION Lawyer on FACE OFF Against Trump in Supreme Court [Meidas Touch;2.12.24]


Many experts say that SCOTUS just doesn't want to touch this issue. And, others say that's an act of cowardice on their part. The Constitution is clear. SCOTUS should interpret the Constitution and doing otherwise strays into questionable territory.

Here's one opinion on the matter, that better explains the nuances, from the NYTimes:

Opinion: Why I changed my mind and think Trump should be thrown off the ballot [NYTimes;2.4.24]

Many analysts, describe t----'s overall strategy as delay-delay-delay. That's been his way for decades. In this present time, he seeks to run out the clock so that none of the court cases run before the election in November, especially not the criminal cases that might have particular importance to voters. So, he appeals everything, no matter how frivolous.
 
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I've been hearing about the Fischer v. US case all week, from many different sources. Here's the plainest and simplest explanation from lawyer Joyce White Vance, her post on 4/18/24:

open.substack.com

SCOTUS: Corruption and Obstruction

In a normal world, we’d all be talking about a pair of big oral arguments at the Supreme Court this week. But obviously, we live in a world that is anything but normal. To discuss this week’s cases at the Supreme Court, we have to take a break from the criminal prosecution of the former...
open.substack.com open.substack.com

The Fischer case is the second one she writes about.

The SCOTUS decision in this case has huge implications for the 300+ defendants convicted of obstruction of an official proceeding on Jan 6. A large number of them might go walking.

Now, a few days since Vance's post, hearings and arguments have been made to the Supreme Court and the judges have levied questions. Expert analysts have been interpreting the proceedings and making predictions about how the case will be decided.

Here are Michael Popok, defense lawyer, and Karen Friedman Agnifolo, former prosecutor, giving their assessment:

Supreme Court Holds MAJOR HEARING with MASSIVE CONSEQUENCES [Meidas Touch;4.20.24]
 
Here’s a different one. I think it really belongs in the ‘authoritarians and authoritarians wannabe grab bag’ thread but it’s late and here I am so. . .

King John Would Like a Word with Justice Alito [Empty Wheel;4.25.24]

The gist is contained in the quote from the monument in the photo at the top of the article: “To Commemorate Magna Carta, Symbol of Freedom Under Law.” I’m grateful to the author for reminding us of where our ‘rule of law’ finds its generation. Incredible story invoking rarefied air that , every now and then, we get to breathe.

SCOTUS has been listening to arguments about ‘presidential immunity’ this past week. It was not very encouraging to observe where they seem to be leaning. The decision could be handed down tomorrow but likely they will wait till the last minute, which is before they go into ‘recess’, some time in late June, I think.

People I listen to have been ‘concerned’ by what they heard. At the very least SCOTUS has catered to t——‘s dearest wish to delay-delay-delay, as many of the court cases against him will very possibly NEVER be heard, or not before the election this November.

Next, I’ll post an interview w retired judge, J Michael Luttig, in which he gives his opinion of what went down.
 
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A little detour first to hear another analysis of the arguments and rxs at SCOTUS, last week:

Supreme Court TIPS ITS HAT after Argument [Meidas Touch;4.29.24]

Found the one I was looking for:

Judge Luttig Issues DIRE WARNING to Supreme Court over Trump Immunity [Meidas Touch;4.29.24]

A lot of people fall back on the trope that elections don’t matter, that, in our 2 party system, the 2 parties are roughly the same. Ya know? It just ain’t so. Not in this moment. This skewed SCOTUS is the direct outcome of an election.
 
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Maybe this is the last post needed to understand what happened in the hearing b4 the Supreme Court last Thursday(?). Until SCOTUS comes up with the decision.

The YouTube description: Former Federal Prosecutor Shan Wu reacts to oral arguments held at the Supreme Court of the United States, and why the final court's decision may result in the eventual delay that Trump was aiming for.

Ex-Federal Prosecutor EXPOSES Supreme Court’s Plan in Trump Immunity Case [Under Color of Law|Meidas Touch;5.1.24]

24 minutes well spent. Listened 2x, actually. Wu uses 2 words, ‘illogical’ and ‘immoral’, to describe the defense’s argument, a perfect summary of what’s wrong with the idea of immunity.
 
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