#ClarenceThomas Secretly Participated in #KochBrothers Network Donor Events

by Joshua Kaplan, Justin Elliott and Alex Mierjeski
Sept. 22, 2023, 5 a.m. EDT

Excerpt: "Thomas has attended at least two Koch donor summits, putting him in the extraordinary position of having helped a political network that has brought multiple cases before the Supreme Court.

" 'In the 15 years since, the Koch network has left a deep imprint on American society. Its advocacy is credited with helping stamp out Republican Party support for combating #ClimateChange, once an issue that drew bipartisan concern. The “full weight of the network” was thrown behind passing the 2017 #TrumpTaxCut, securing a windfall for the Kochs and their donors. And the upcoming Supreme Court term could bring the network a victory it has pursued for years: overturning a major legal precedent known as #Chevron.

"While most Americans aren’t familiar with the 1984 case Chevron v. #NRDC, it’s one of the Supreme Court’s most-cited decisions. Legal scholars sometimes mention it in the same breath as Brown v. Board of Education and Roe v. Wade. In essence, Chevron is about government agencies’ ability to issue regulations. After a law is enacted, it’s generally up to agencies across the government to make detailed rules putting it into effect. The Chevron decision said courts should be hesitant to second-guess the agencies’ determinations. In the years that followed, judges cited Chevron in upholding rules that protect endangered species, speed up the approval process for new cellphone towers and grant benefits to coal miners suffering from black lung.

"The Koch network has challenged Chevron in the courts and its lobbyists have pushed Congress to pass a law nullifying the decision. It has also provided millions of dollars in grants to law professors making the case to overturn it.

"The network’s position has become increasingly popular in recent years. Once broadly supported by academics and judges on the right, Chevron is now anathema to many in the conservative legal movement. And there’s no more prominent convert than Thomas.

"In 2005, Thomas wrote the majority opinion in a case that expanded Chevron’s protections for government agencies. Ten years later, he was openly questioning the doctrine. Then in 2020, Thomas renounced his own earlier decision, writing that he’d determined the doctrine is unconstitutional after all — a rare reversal for a justice with a reputation for being unmovable in his views.

"By last year, Koch network strategists sensed that victory could be at hand. During an internal briefing for network staff, Jorge Lima, a senior vice president at Americans for Prosperity, said the Supreme Court seemed primed to radically change its approach to the issue. The network was trying to find cases that could bring about major changes in the law, according to a video of the meeting obtained by the watchdog group Documented. “We’re doubling down on this strategy,” Lima told the crowd.

"Several months later, the Supreme Court announced it would take up a case, Loper Bright Enterprises v. Raimondo, in which Koch network staff attorneys represent the plaintiffs. If Thomas and his colleagues side with them this coming term, Chevron will be overturned once and for all."

Read more:
https://www.propublica.org/article/clarence-thomas-secretly-attended-koch-brothers-donor-events-scotus

Finally Friday Reads: When Fascism comes to the United States …

“Overheard at the neighborhood karaoke bar.” John Buss, @repeat1968

Good Day, Sky Dancers!

I’ve been tempted to reread a book I was assigned in high school, by the 20th-century author Sinclair Lewis. “His 1935 novel, It Can’t Happen Here, centers  around a flag-hugging, Bible-thumping politician named Berzelius (”Buzz”) Windrip.” This novel is likely the inspiration for this bit of wisdom from the same period that frequently gets attributed to Lewis because of the novel. “When fascism comes to America, it will be wrapped in the flag and carrying a cross.”  This essay is from last April’s Common Dreams and is written by Bill Durst.  You may recall this isn’t the first time I’ve reflected longingly on Lewis.

Although no one’s actually sure that Sinclair Lewis ever wrote or said this, his 1935 novel, It Can’t Happen Here, centers around a flag-hugging, Bible-thumping politician named Berzelius (”Buzz”) Windrip. Despite having no particular leadership skills other than the ability to mesmerize large audiences by appealing to their baser instincts (and to bully those people who aren’t so easily mesmerized), Windrip is elected President of the United States. Shortly after Windrip takes office, through a flurry of executive orders, appointments of unqualified cronies to key governmental positions, and then a declaration of martial law, Windrip quickly makes the transition from a democratically elected president to a brutal, fascist dictator. The novel’s title, It Can’t Happen Here, refers to the mindset of key characters in the novel who fail to recognize Windrip’s fascist agenda before it’s too late.

Written almost a century ago during the rise of fascism in Europe prior to World War II, It Can’t Happen Here is disturbingly prescient today. Buzz Windrip’s personal traits, his rhetoric, and the path through which he initially becomes the democratically elected U.S. president, and soon afterward, the country’s first full-fledged fascist dictator, bear an uncanny resemblance to the personality traits and rhetoric of Donald Trump and the path through which he has come thus far to be the 47th President of the United States, and through which he appears to be on course to become our country’s first full-fledged…. But no! It can’t happen here! Or can it?

I’m sure even Sinclair Lewis did not see Christofasicist billionaires stacking the Supreme Court with equally overreaching religious nuts.  The reversal of Roe still has hand devastating and deadly impact on women in this country. This term of the Supreme Court has cursed us with religiosity of a specific source once more.  I only took one Constitutional Law class at university, and it was part of the Political Science Department, but that book still resides in my hallway library.  That’s back when I fancied myself to be prelaw and my political activities were focused on changing the Rape Laws and police institutions surrounding violence and rape against women and children. Back then, women could not be raped by their husbands and they had to have two eyewitnesses to the rape.  Those laws changed in Nebraska, and fortunately, they still stand. However, spiritual rape and violence still stands and is “wrapped in the flagg and carrying a cross.”  It exists in Congress, persists in the Executive Branch, and drags its knuckles through the Supreme Court. It does not take a lawyer to know a rape when they see one.

Sit down. The Surpeme Court’s decisions this term are nothing short of institutional rape of the U.S. Constitution.  This is the same crew that took down Abortion Rights by citing a witch-burning jurist from 17th England.

The AP is full of headlines that make me want to open up my window and scream very loudly.  The only solace is that it could’ve been worse.  The only joy will be reading the objections and rebuttals of the sane women who sit on the court.

Christian legal advocacy group calls LGBTQ+ books case ruling a ‘monumental victory’

Trump says school decision will ‘bring life back to normal’

Restricting birthright citizenship is not popular, AP-NORC polling shows

Trump praises Justice Barrett

JUST IN: Trump says he’ll ‘promptly file’ to advance policies blocked by judges, including birthright citizenship restrictions.

JUST IN: Trump hails ‘monumental victory’ after Supreme Court curbs nationwide injunctions that have slowed his agenda.

Digital rights group says ruling could upend First Amendment access

National Latino organizations criticize Supreme Court ruling

You get the drift.

So, let’s dig deeper. This is from the Washington Post. “Supreme Court sides with religious parents seeking to opt out of LGBTQ storybooks. The case asked whether Montgomery County, Maryland, could require children to participate in lessons with books that clash with parents’ religious beliefs.” Love thy neighbor is lost on these people.  Of course, guess who wrote for the majority in this one? Mister, I loved the Inquisition, Alito.  This guy’s father came to America from Italy in 1914. That was a time when most of the white people here didn’t want Italians here. He’s evidently forgotten they were lynched in the United States at one point. But now, he’s just another oppressor.

The Supreme Court sided Friday with a group of parents seeking to withdraw their children from public school lessons featuring LGBTQ+-themed storybooks, a case that mixed parental rights and religious freedom.

The justices said school officials in Montgomery County, Maryland, may not require young children to participate in lessons with books that conflict with their parents’ religious beliefs.

The 6-3 decision could have implications for public schools nationwide and could give families the right to voice religious objections to a broad range of learning materials, expanding on the long-standing practice of allowing opt-outs for reproductive-health classes.

Justice Samuel A. Alito Jr., writing for the majority, said government officials burden the religious rights of parents when they require them to “submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill.”

While litigation continues, Alito wrote, Montgomery County must notify parents in advance whenever one of the books in question or any other similar book is to be used in any way and to allow them to have their children excused from that instruction.

Justice Sonia Sotomayor read a summary of her dissent from the bench on behalf of the three liberal justices. She said the court’s ruling “strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society.”

Leaders with Montgomery County Public Schools and its school board said in a joint statement Friday that the decision “is not the outcome we hoped for or worked toward.”

“It marks a significant challenge for public education nationwide,” school system officials said. The school system said it is working on determining its next steps.

Let’s rewrite that as Hate your neighbor unless he ascribes to his particular version of ‘yourself”.   To continue on that topic, let’s move to the next decision.  This is from MSNBC. “The Supreme Court’s birthright citizenship reasoning reveals a startlingly myopic view. The conservative wing of the court overly relies on the emergency shadow docket and shouldn’t have entertained the administration’s birthright argument.”  They continue to destroy one precedent after another. This analysis is by Shan Wu, a legal analyst and former federal prosecutor.

The so-called birthright citizenship case decided by the U.S. Supreme Court on Fridayproved an irresistible shiny object to the court’s hubris, gleaming with the chance to address fringe conservative ideology and enhance the power and ego of the high court, all while it used its favorite new love: the emergency shadow docket. To put it plainly, the conservative wing of the court shouldn’t have even entertained the Trump administration’s arguments about birthright citizenship — and those justices have made it clear that they can and should diminish the role of lower courts through their prodigious use of the emergency shadow docket.

Consolidated from three cases in which lower courts stayed implementation of President Donald Trump’s executive order revoking the U.S. Constitution’s guarantee of birthright citizenship, the case involved only the question of whether lower court judges can issue nationwide injunctions. But at oral argument, the justices couldn’t help themselves, wading repeatedly into the question of birthright citizenship itself, thus lending legitimacy to a once-fringe conservative theory.

The Constitution couldn’t be clearer. Section 1 of the 14th Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

It’s difficult to see how fans of “originalism” could read this to mean that children born in the United States somehow aren’t citizens — but that is exactly what Trump’s Justice Department argued.

Keep in mind that the 14th Amendment itself arose after a civil war was fought over the question of whether slaves possess the same rights as other people in the country — and was specifically meant to counter the backlash against Black people and recalcitrance in the Southern states to treating freed slaves as equals.

” Lending legitimacy to a once-fringe conservative theory” is their favorite activity. The Washington Monthly’s  Jack Rakove has a succinct view on this version of the Supremes.  I weep for the country that my family fought so hard to found and continue and to improve.  These folks are throwbacks to the European Dark Ages. “It’s Not Just a Constitutional Crisis in the Trump Era. It’s Constitutional Failure. The problem isn’t just the crisis of the administration defying the courts. It’s the failure of the legislative and judicial branches to check the president.”

The idea that the United States awaits some dread constitutional crisis has become commonplace. For lawyers, such a crisis would likely involve Donald Trump’s administration defying the Supreme Court on some critical ruling. But other crises are readily imaginable. Might President Trump invoke the Militia Act to manipulate the 2026 congressional elections, or order the Marines to take sites in Greenland without congressional approval, which seems ever more plausible after the June 22 bombing of Iranian nuclear facilities?

Such scenarios are not unfounded, but they do not diagnose our true malady. Our ongoing constitutional crisis began with the presidential election last November 5. Reelecting an individual culpable for January 6 who has twice made a mockery of the presidential oath of office is itself a constitutional crisis. Nothing in his past or current behavior suggests that Trump has ever felt fidelity to his constitutional duties.

Once a constitutional crisis becomes an endemic condition, the term no longer usefully describes our collapsing system. Instead, we live in an era of constitutional failure when the relevant institutions cannot fulfill their responsibilities.

Because constitutional failure is a term we have never needed to use, it merits a precise definition. First, it must identify the specific situations where the government institutions have manifestly not fulfilled their constitutional functions. Second, it should treat these omissions not as occasional lapses but systemic defects. Third, it must explain how the political and ethical norms of constitutional governance have evaporated.

To apply this framework to the second Trump administration is hardly difficult. The only problem is where to begin. Consider its authoritarian reliance on executive orders to vitiate legally established government activities, its attempt to intimidate institutions outside of government to do its bidding, and its insistence that servile loyalty to the president outweighs fidelity to constitutional norms. That some commentators describe this last practice as the Führerprinzip—the Nazi principle that the will of the leader transcends all legal norms—tells us everything.

Deciding whether the Constitution is failing requires asking if and why the other two branches of government have been remiss in checking a rogue executive.

Their most important failures involve the two clauses that would have disqualified Trump from reelection: the presidential impeachment clause and Section 3 of the Fourteenth Amendment. But starting in a more obscure location is better: the two Emoluments Clauses restricting the material benefits a president can receive from other governments. In his first administration, three suits sought to force Trump to comply with these two clauses. One, brought by members of Congress, was plausibly dismissed on standing grounds, because a minority faction in Congress cannot litigate to make the body implement a power it already possesses. Two other cases, however, progressed in the lower courts, but once they were appealed, the Supreme Court slow-walked them until Trump left office, leaving the issue moot.

The Court thus casually squandered an opportunity to clarify the meaning of a provision that badly needs enforcement. All previous presidents had scrupulously adhered to the Emoluments Clauses, which embody the fundamental principle that presidents should neither seek nor hold office for private gain. The honor of holding the highest office in the land should displace every other ambition. But this president and his family have more material, even sordid aims to pursue. With Trump, the imperial presidency and the presidential emporium have converged. This White House is for sale, whether through gifts from wealthy entrepreneurs, the manipulation of tariffs, and, perhaps worst of all, the family’s active involvement in crypto meme speculations.

But the two Emoluments Clauses occupy only obscure niches in the Constitution. The same cannot be said of the powers being abused to eliminate federal agencies and departments and purge civil servants. These agencies and officials derive their authority from congressional enactments and appropriations. All are covered by the Impoundment Control Act of 1974, adopted to constrain the unilateral efforts of President Richard Nixon to reduce federal spending on his own authority. All involve the signature constitutional obligation of the president to “take care that the laws be faithfully executed,” not least because every statute requires either the assent of the chief executive or, in the case of a presidential veto, its reenactment by supermajorities in both houses of Congress.

The most fundamental purpose of constitutional government, as it evolved in 17th-century England and revolutionary America, was to make the executive power susceptible to legislative control. It did not matter whether the executive was monarchical, ministerial, or presidential. The key point established by the English Glorious Revolution of 1688 was that the Crown had to rule with parliamentary consent or supervision.

Please continue to the link to read this article in its entirety. This is a professor who knows his history. We’re in a period where we can reflect on how Nixon was stopped, and how Trump is being enabled.  Here’s more on the overturning of the Trump injunctions.  This is from the New York Times. It’s written by Abbie Van Sickle. “Supreme Court Live Updates: Trump Hails Ruling to Limit Nationwide Injunctions. In a major victory for President Trump, the court restricted the ability of federal judges to block his executive orders. The decision may reshape the way U.S. citizenship is granted, even temporarily.”

The Supreme Court on Friday limited the ability of federal judges to temporarily pause President Trump’s executive orders, a major victory for the administration. But the justices made no ruling on the constitutionality of his move to end birthright citizenship, and they stopped his order from taking effect for 30 days.

The 6-to-3 decision, written by Justice Amy Coney Barrett and split along ideological lines, may dramatically reshape how citizenship is granted in the United States, even temporarily. The ruling means that the practice of giving citizenship automatically to the U.S.-born children of undocumented immigrants and some temporary residents and visitors would end in the 28 states that have not challenged the order.

The court’s decision appeared to upend the ability of single federal judges to freeze policies across the country, a powerful tool that has been used to block policies from Democratic and Republican administrations. The majority offered a different path to challenging Mr. Trump’s orders on a nationwide basis: class action lawsuits.

Mr. Trump praised the ruling, calling it “giant,” in a news conference at the White House. “Our country should be very proud of the Supreme Court today,” he said.

In a blistering dissent, Justice Sonia Sotomayor called the majority’s decision “a travesty for the rule of law.” Progressive Democrats, legal advocates and civil and immigrant rights groups called it a major blow to long-settled constitutional law, and said it would create a dangerous patchwork of rights across the nation.

The majority stressed that it was not addressing the merits of Trump’s attempt to end automatic citizenship for babies born on U.S. soil. Challenges to the citizenship order are pending in appeals courts, and the administration has told the Supreme Court that it would seek review before the justices should it lose. But there is no pending case on the merits of Mr. Trump’s executive order at the Supreme Court.

It is likely but hardly certain, then, that the court will decide the issue in the term that starts in October, as Attorney General Pam Bondi repeatedly promised in Mr. Trump’s news conference.

Tom Toles Editorial Cartoon

Here’s one that directly impacts my family. My ex-husband and his oldest sister were born on a US base in Japan. They have State Department birth certificates, which are the fanciest things you’ve ever seen. His birth certificate has a big red ribbon and all kinds of gold seals.  You may remember some folks went after Senator John McCain for the same issue.  He was born on a base in the Panama Canal Zone.  Well, this issue has raised its ugly head again.  “Son of U.S. soldier born on Army base in Germany deported to Jamaica.”

A man born to an active-duty member of the United States military on an Army base in Germany in 1986 before coming to the states as a child was deported last week to Jamaica, a country he’s never been to, according to a report by The Austin Chronicle.

Jermaine Thomas, whose Jamaican-born dad became a U.S. citizen during his 18-year military career, spent much of his early life moving from base to base with his father and mother, the latter a citizen of Kenya at the time of his birth.

At 11 years old, after his parents’ divorce and his mother’s second marriage to another soldier, he went to live with his father, who had since retired, in Florida. Unfortunately, his father passed away in 2010 from kidney failure, shortly after Thomas had arrived.

Much of his life after that, The Chronicle reported, was spent in Texas, homeless and in and out of jail.

It’s unclear when exactly Thomas was first ordered to leave the country, but court records from 2015 show a case that went all the way to the Supreme Court, in which the U.S. Department of Justice argued that he was not a citizen simply because he was born on a U.S. Army base in Germany.

The Supreme Court ruled in favor of the DOJ, upholding the U.S. Court of Appeals decision and denied Thomas’ petition for a review of the deportation order, saying in part that “his father did not meet the physical presence requirement of the statute in force at the time of Thomas’s birth.”

My father-in-law was hardly ever home, cheated on his first wife, and his second wife, who wound up living with us, and if he wasn’t in a wheelchair shortly thereafter, probably would have with the third wife he left the second for. He had several children that the family had found, so can I get this applied to my Ex sent back to Japan, or maybe Somalia? He was the first bona fide narcissist I’ve ever personally known. Having a rotten father can get you deported? Really? The Supreme Court has basically put all State Department Birth Certifications in jeopardy.

The only good news coming out of the court was that they upheld “ObamaCare,” but they did so with a few qualms.  This is from HuffPo. “Supreme Court Upholds Preventive Health Care Access For Millions Of Americans. The scope of coverage in America still remains uncertain, however.”

The Supreme Court on Friday rejected a challenge to a crucial component of the Affordable Care Act, affirming the oversight of a panel of medical experts who recommend preventive care for health insurance coverage is constitutional.

This means services like lung and colon cancer screenings, HIV prevention medication, statins for heart disease, and various pregnancy screenings, which have been recommended by the panel,could continue to be covered free of charge for the 150 million Americans who have private insurance.

In the ruling, the court held that members of the United States Preventive Services Task Force, agroup of independent medical experts, are considered“inferior officers” and “at will”under the secretary of the Department of Health and Human Services. The case had challenged the structure of the panel, calling into question its authority to make recommendations for what types ofpreventive care insurers are required to cover and threatening access to the no-cost care it recommends.

The court reversed an appeals court decision and sent the case back down to lower courts for future proceedings. Justice Brett Kavanaugh wrote the 6-3 majority opinion, with Justices Clarence Thomas, Sam Alito and Neil Gorsuch dissenting.

“The structure of the Task Force and the manner of appointing its officers preserve the chain of political accountability that was central to the Framers’ design of the Appointments Clause,” Kavanaugh wrote in the opinion.”

This still has several ramifications, and it landed right on another case.  First, right now, that means RFK Jr. gets a lot of power on these decisions. Then there is this. This is from The Washington Post. “Supreme Court allows states to cut off Medicaid funding for Planned Parenthood. Ruling says Medicaid patients cannot sue to get non-abortion health care from Planned Parenthood if states have cut off government funding for those clinics.”  All roads lead back to state control of women and denying the poor and POC basic rights.

A divided Supreme Court on Thursday ruled against Planned Parenthood, saying Medicaid patients do not have a right to sue to obtain non-abortion health care from the organization’s medical providers.

The decision allows South Carolina to cut off Medicaid funding for Planned Parenthood. It also has implications for patients in other states at a time when Republicans in Congress and the Trump administration are separately trying to defundeven non-abortion health care offered bythe nation’s largest abortion provider.

The 6-3 ruling, with all three liberal justices dissenting, reversed a lower-court decision that had allowed Planned Parenthood South Atlantic and a patient to seek to reinstate the group’s clinics as qualified health care providers after South Carolina cut off all Medicaid funding for the organization because it offers abortion services.

The decision means patients who rely on Medicaid will not be able to use the government insurance program for the poor to get services at the Planned Parenthood clinics in South Carolina.

The state already bans abortion after six weeks of pregnancy, and federal law prevents states from using Medicaid funds to cover abortions in most cases. But this case — Medina v. Planned Parenthood South Atlantic — involves other types of reproductive health care, such as birth control and cancer screenings.

So, this is long, and I’ve probably either bored you or depressed you.  I’ve done a lot of both to myself, frankly. You expect the law not to promote specific religions, people, and social classes over others.  You expect justice. But then, that was a long time ago now.

What’s on your reading and blogging list today?