News bit: Breyer critiques the USSC

A NYT article, Justice Breyer, Off the Bench, Sounds an Alarm Over the Supreme Court’s Direction, includes these comments:

“Something important is going on,” he said. The court has taken a wrong turn, he said, and it is not too late to turn back.

The book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” will be published on March 26, the day the Supreme Court hears its next major abortion case, on access to pills used to terminate pregnancies.

Textualism is a way of interpreting statutes that focuses on their words, leading to decisions that turn on grammar and punctuation. Originalism seeks to interpret the Constitution as it was understood at the time it was adopted, even though, Justice Breyer said in the interview, “half the country wasn’t represented in the political process that led to the document.”

There are three large problems with originalism, he wrote in the book.

“First, it requires judges to be historians — a role for which they may not be qualified — constantly searching historical sources for the ‘answer’ where there often isn’t one there,” he wrote. “Second, it leaves no room for judges to consider the practical consequences of the constitutional rules they propound. And third, it does not take into account the ways in which our values as a society evolve over time as we learn from the mistakes of our past.”

Justice Breyer did not accuse the justices who use those methods of being political in the partisan sense or of acting in bad faith. But he said their approach represented an abdication of the judicial role, one in which they ought to consider a problem from every angle.

The weakness inherent in Breyer’s democratic mindset is painfully obvious in the last quoted paragraph. His logic is flawed. Specifically, it is now clear that what he calls an abdication of the judicial role, is blatantly partisan. The decisions of the six radical authoritarians make that undeniable. They are not principled decisions. They are goal-driven. Breyer still cannot see the authoritarian threat. He just does not get it.

Interestingly, Breyer’s comment that originalism not take into account the ways in which social values evolve invokes American Legal Realism (ALR). Once I became aware of ALR, my understanding of why radical right authoritarianism had to come up with crackpot legal theories like originalism and textualism. Simply put, those crackpot theories are far more compatible with outcome-driven authoritarianism than with democracy in complex modern societies.

The authoritarian threat: Tactics in defense of dark free speech

A key weapon that authoritarianism has against democracy and civil liberties is DFS (dark free speech). DFS includes lies, deceit, slanders, unwarranted opacity, irrational emotional manipulation, crackpottery including idiotic conspiracy theories and flawed logic, etc. A DFS tactic that has become a lot more common since the rise of DJT is to single out and attack facts, true truths and sound reasoning HS or honest speech) that are inconvenient, threatening or otherwise unwanted to the authoritarian mindset and wealth and power agenda. The attacks usually claim that the HS, or efforts to defend it, is the opposite or different than actual reality.

A long NYT article reports about an example of the discouraging success the authoritarians are having in defending DFS and the difficulty of pro-democracy forces to defend HS (full article not behind paywall):

How Trump’s Allies Are Winning the War Over Disinformation

Their claims of censorship have successfully stymied the effort to filter election lies online

In the wake of the riot on Capitol Hill on Jan. 6, 2021, a groundswell built in Washington to rein in the onslaught of lies that had fueled the assault on the peaceful transfer of power.

Social media companies suspended Donald J. Trump, then the president, and many of his allies from the platforms they had used to spread misinformation about his defeat and whip up the attempt to overturn it. The Biden administration, Democrats in Congress and even some Republicans sought to do more to hold the companies accountable. Academic researchers wrestled with how to strengthen efforts to monitor false posts.

Mr. Trump and his allies embarked instead on a counteroffensive, a coordinated effort to block what they viewed as a dangerous effort to censor conservatives.

They have unquestionably prevailed.

Waged in the courts, in Congress and in the seething precincts of the internet, that effort has eviscerated attempts to shield elections from disinformation in the social media era. It tapped into — and then, critics say, twisted — the fierce debate over free speech and the government’s role in policing content.

Projects that were once bipartisan, including one started by the Trump administration, have been recast as deep-state conspiracies to rig elections. Facing legal and political blowback, the Biden administration has largely abandoned moves that might be construed as stifling political speech.

While little noticed by most Americans, the effort has helped cut a path for Mr. Trump’s attempt to recapture the presidency. Disinformation about elections is once again coursing through news feeds, aiding Mr. Trump as he fuels his comeback with falsehoods about the 2020 election.

“The censorship cartel must be dismantled and destroyed, and it must happen immediately,” he thundered at the start of his 2024 campaign.

The counteroffensive was led by former Trump aides and allies who had also pushed to overturn the 2020 election. They include Stephen Miller, the White House policy adviser; the attorneys general of Missouri and Louisiana, both Republicans; and lawmakers in Congress like Representative Jim Jordan, Republican of Ohio, who since last year has led a House subcommittee to investigate what it calls “the weaponization of government.”

Those involved draw financial support from conservative donors who have backed groups that promoted lies about voting in 2020. They have worked alongside an eclectic cast of characters, including Elon Musk, the billionaire who bought Twitter and vowed to make it a bastion of free speech, and Mike Benz, a former Trump administration official who previously produced content for a social media account that trafficked in posts about “white ethnic displacement.” (More recently, Mr. Benz originated the false assertion that Taylor Swift was a “psychological operation” asset for the Pentagon.)

Three years after Mr. Trump’s posts about rigged voting machines and stuffed ballot boxes went viral, he and his allies have achieved a stunning reversal of online fortune. Social media platforms now provide fewer checks against the intentional spread of lies about elections.

“The people that benefit from the spread of disinformation have effectively silenced many of the people that would try to call them out,” said Kate Starbird, a professor at the University of Washington whose research on disinformation made her a target of the effort.

That work has led to some of the most important First Amendment cases of the internet age, including one to be argued on Monday at the Supreme Court. That lawsuit, filed by the attorneys general of Missouri and Louisiana, accuses federal officials of colluding with or coercing the platforms to censor content critical of the government. The court’s decision, expected by June, could curtail the government’s latitude in monitoring content online.

The arguments strike at the heart of an unsettled question in modern American political life: In a world of unlimited online communications, in which anyone can reach huge numbers of people with unverified and false information, where is the line between protecting democracy and trampling on the right to free speech?

Even before the court rules, Mr. Trump’s allies have succeeded in paralyzing the Biden administration and the network of researchers who monitor disinformation.

Officials at the Department of Homeland Security and the State Department continue to monitor foreign disinformation, but the government has suspended virtually all cooperation with the social media platforms to address posts that originate in the United States.

“There’s just a chilling effect on all of this,” said Nina Jankowicz, a researcher who in 2022 briefly served as the executive director of a short-lived D.H.S. advisory board on disinformation. “Nobody wants to be caught up in it.”

The NYT article continues at length. 

I post this for a couple of reasons. First, this information reinforces my long-standing belief that DFS is the single most potent and successful weapon that the forces of American anti-democratic authoritarianism have in destroying democracy and civil liberties. When defense of HS is attacked as censorship of free speech, the attack defends DFS and authoritarianism. It is a brilliant and so far effective strategy to kill American democracy and our civil liberties.

Second, this highlights the power that DFS has to poison minds and create a false reality. DFS is truly a potent weapon. It is a democracy killer. That is why authoritarian extremists attack defense of HS as evil censorship, when in fact it is the opposite. 

Reigning in rogue MAGA judges?

The WaPo reports: 

Judges, GOP lawmakers slam new policy that limits ‘judge shopping’

Federal judiciary officials announced Tuesday that cases with broad ramifications should be assigned randomly

Conservative judges and senior Republican lawmakers are pushing back against a newly announced policy that would require assigning judges at random in civil cases that have statewide or national implications, saying the action conflicts with federal law.

In letters sent to about a dozen chief judges across the country, Senate Minority Leader Mitch McConnell (R-Ky.) — joined by Republican Sens. John Cornyn (Tex.) and Thom Tillis (N.C.) — urged the judges to continue their current case assignment practices, noting: “Judicial Conference policy is not legislation.”

They were responding to an announcement Tuesday by the Judicial Conference of the United States, the policymaking body for the federal courts. Judicial Conference officials have not yet released their new policy to the public, and a spokesman declined to comment when asked whether the conference has the authority to make the change.

On Tuesday, the conference said cases with statewide or national implications can no longer be automatically filed in single-judge divisions and assigned to the judges who preside there. Such divisions exist in rural parts of the country where courthouses are spaced very far apart.  

Officials said they were trying to address widespread concerns about “judge shopping” — or filing a lawsuit in a courthouse where the lone judge is known or suspected to be sympathetic to a particular cause.

This just adds to the mountain of evidence of the bitter authoritarian intent, moral rot and bad faith that controls and drives the Trump Tyranny & Kleptocracy Party (formerly the GOP). Any pro-rule of law person would want lawsuits assigned and judged in a way that is fair. 

Authoritarians want their lawsuits assigned in ways that advance anti-democratic authoritarianism and corruption. The best way to do that is to do judge shopping and file cases where the judge is an unprincipled authoritarian.

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Slate writes about the same proposed anti-judge shopping rule:

John Roberts Just Dropped the Hammer on Rogue, 

Lawless Trump Judges

For more than a decade, conservative plaintiffs have been gaming the judiciary by filing lawsuits before a hard-right judge who’s guaranteed to rule in their favor. Worse, a handful of Republican-appointed judges have made a habit of issuing sweeping decisions that apply nationwide—hobbling the federal government, short-circuiting the democratic process, and transferring inconceivable amounts of power into the hands of a few unelected jurists. The Judicial Conference of the United States, which makes policy for the federal courts, finally struck a blow against this cynical gamesmanship on Tuesday, announcing a new rule to restore the random assignment of cases and close the loophole that lets plaintiffs hand-pick their judges.

Dahlia Lithwick: It’s always hard for me to think that anything the Judicial Conference does is a big piece of news, but they did announce a new policy that sets out to curb judge-shopping. It’s the Conference trying to say: “Hey, you can’t just go to the casino that is Amarillo, Texas, and get Matthew Kacsmaryk every time you file a case.”

Mark Joseph Stern: We can glean that under this rule, when somebody files a lawsuit in federal district court that challenges some kind of federal policy—specifically, if it seeks a nationwide injunction or other sweeping relief—it must be randomly assigned to any judge in that district. The lawsuit cannot simply be glued onto the one judge who happens to sit in the division of the district where the plaintiffs strategically filed to prevail in their case.

As you suggested, this is the Matthew Kacsmaryk fix. Kacsmaryk is the guy who sits in a one-judge division in Amarillo, Texas, who will do whatever anti-LGBTQ, anti-abortion, anti-immigrant plaintiffs ask him to do. The state of Texas goes back into his courthouse over and over again to get sweeping injunctions. The same thing happens with a handful of other Trump-appointed judges in Texas and Louisiana.

Chief Justice John Roberts brought up this problem in one of his annual reports, and now he has dropped the hammer. He’s the head of the Judicial Conference, and one of the other most prominent members is Jeffrey Sutton of the 6th U.S. Circuit Court of Appeals. Sutton is a very Roberts-ian figure who has complained bitterly, and I think correctly, about the scourge of nationwide injunctions. And now they’ve sort of shivved this entire scheme. Their message to these out-of-control district judges seems to be: “It’s over. You can’t keep the grift up. We’re patching this workaround.”

Judge Sutton, talking about this new rule, said: “I actually think the story is about national injunctions. That’s been a new development, really in the last 10 years and maybe the last two or three administrations, where that has become a thing.” I always love when a judge runs out of words and just says “a thing.” But I think it’s important to understand that this policy doesn’t actually stop a single-judge division from issuing a nationwide injunction. It just makes it harder. It sends cases through the spinner to avoid a case going directly to someone like Kacsmaryk. But cases will still end up being randomly assigned to Kacsmaryk.

Yes. It’s alarming that if a case is randomly assigned to Kacsmaryk, he can still work his mischief. He clearly has no hesitation to do whatever his client-plaintiffs want him to do in their ongoing collusion. So the ultimate solution has to be an end to this trend of single judges purporting to seize control of the law and make it whatever they want because they got 51 votes in the Senate and they have a God complex and they’ve decided that they’re the King of America.

Even Republican politicians are getting in on the bashing of the poor Judicial Conference.

Senate Minority Leader Mitch McConnell himself, from the floor of the Senate, delivered a screed against this policy, calling it an “unforced error” and also encouraging district courts to defy the Judicial Conference’s authority and ignore the new policy. McConnell actually sent a letter to the chief judge of every district court in the country, co-signed by GOP Sens. John Cornyn and Thom Tillis, encouraging them to disregard the policy, basically saying it’s illegal. So we’re seeing Republicans telling courts to defy the chief justice of the United States and his ultimate authority as head of the entire Article III judiciary. We might see an intra-war branch within Article III between judges who accept the policy and judges who don’t.

The proposed new rule,

pages 1-2 of 6

 

News bits: The CN threat du jour; Thinking about Guernica; Gaza update

Threats from Christian nationalist elites and enablers are n ow coming fast and enraged. The latest blast of aggression comes from radical Christian nationalist Franklin Graham telling the world that God is going to destroy the pro-abortionists in France for protecting abortion rights.

One can wonder how Graham feels about pro-abortionists in America who try to protect abortion rights. Probably the about same or worse.

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A WaPo commentary about the Picasso painting Guernica raises bits of history worth considering:

On April 27, 1937, the London Times reported the following:

“Guernica, the most ancient town of the Basques and the center of their cultural tradition, was completely destroyed yesterday afternoon by insurgent air raiders. The bombardment of the open town far behind the lines occupied precisely three hours and a quarter, during which a powerful fleet of aeroplanes … did not cease unloading on the town bombs weighing from 1000 lbs. downward. … The fighters, meanwhile, plunged low from above the center of the town to machine-gun those of the civilian population who had taken refuge in the fields.”

The Spanish Civil War began when Gen. Francisco Franco, with support from Adolf Hitler and Benito Mussolini, carried out a coup against Spain’s newly installed left-wing government.

Pablo Picasso painted “Guernica,” arguably his greatest masterpiece, in response to this devastating attack, which took place during the Spanish Civil War.

The bombing of Guernica was intended by Hermann Göring, commander in chief of the German Luftwaffe, as a birthday gift for Hitler. The attack was delayed by several days because of logistical issues, but Hitler was pleased nonetheless. The plan was to maximize civilian casualties. Col. Wolfram von Richthofen, who was in charge of the attack, achieved this by pausing after a brief initial bombing, then, after civilians had come out of their shelters, launching a devastating second wave. People were trapped in the open, incinerated, asphyxiated and strafed with machine-gun fire. An estimated 1,500 civilians were killed. Guernica was leveled.

Richthofen, a cousin of Manfred von Richthofen, the notorious “Red Baron” of World War I, described the attack as “absolutely fabulous … a complete technical success.”

I was able to see Guernica in Spain. It is one of the most powerful and moving pieces of art I have ever experienced in person. 

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Disclaimer: This is not intended to equate what the Nazis did to Guernica with what Israel’s war against Hamas is doing to Gaza. It is intended as a Gaza update.

In a long article, the WaPo reports about people missing in Gaza (article not behind paywall):

Thousands of Gazans have gone missing. 

No one is accounting for them.

Many disappeared under the rubble after airstrikes. Others are believed to have been detained at Israeli checkpoints while fleeing south or trying to return to the north. Some simply left one day and never came back.

Their desperate families search hospitals and contact hotlines set up by International Committee of the Red Cross (ICRC). They scour photos of bodies in the streets and of blindfolded men detained by Israeli forces. They share pictures of relatives online, pleading for leads.

From October through February, the ICRC received reports of 5,118 Palestinians missing in Gaza. The Washington Post interviewed 15 people who lost contact with friends and family in Gaza since Oct. 7 — in only two cases were they able to find them. The most painful part, many said, was being in the dark about their fate.

Israel’s war in Gaza, launched after the devastating Hamas-led attack on southern Israel, has killed more than 31,000 people, according to the Gaza Health Ministry, which does not distinguish between combatants and civilians but says the majority of the dead are women and children. The Israel Defense Forces (IDF) estimates it has killed between 11,500 and 13,000 militants, as it seeks to eradicate Hamas from the enclave.

The ministry relies mostly on reports from hospitals for its death counts. With the enclave’s medical system in shambles, Palestinian health officials say many more deaths have gone unrecorded.