Merrick Garland revisited: Not a timid incompetent, but a corrupt, complicit traitor?

Early on, in May of 2021 it was clear to me that Merrick Garland was not going to seriously go after DJT and his cadre of thugs, traitors and grifters. Thus calling for firing him for timidity and gross incompetence seemed like sound reasoning based on the evidence I relied on. One of the deeply disturbing things that set me off in 2021 was an informed assessment that the Mueller report faded away, as if it had all been for nothing. To this day, DJT crimes the Mueller report clearly documented  have not been prosecuted. That bit of nastiness is footnoted in my blog post.

Legal analysis of 4 documented instances of obstruction

of justice felonies that DJT committed during the Mueller 

investigation -- all 4 are documented in detail in the Mueller report

Garland never prosecuted any of those felonies

Now, after being made aware of some information, I'm not at all sure that timid incompetence was the correct way to view the situation. That assessment was very likely wrong. It definitely was based on incomplete knowledge. That is always a danger. 

Anyway, I was just made aware of some deeply disturbing things about Garland and his mentor Jamie Gorelick I was ignorant about. Although what I quote below might sound to some like deranged crackpot conspiracy theory, there seems to be at least a reasonably good and defensible basis in circumstances to support the idea that Garland is not a timid incompetent, but instead is a deeply corrupt, complicit traitor. 

The information comes from Sarah Kendzior, an author, anthropologist, researcher, and scholar. She has a Wikipedia page. From that information, she does not appear to be a crackpot. At her substack, Sarah Kendzior's Newsletter, she wrote this in Nov. of 2023 in a very long article, Servants of the Mafia State; Merrick Garland, Jamie Gorelick, and the truth:

I have told this story in pieces over the years. I am now putting the information in one article to make it easier to find. The story touches on so many atrocities that it is impossible for me to cover them all, and I encourage folks to pick up where I left off. The point of describing a crisis is to give people tools to fix it. This shadow network affects everyone, regardless of where you live or for whom you voted.

It is common to hear Garland described as an institutionalist. This is true. He protects a broken and corrupt institution, the Department of Justice. He protects it instead of protecting the United States or its people. He protects it above democracy or freedom or a future. He protects it over justice itself.

The DOJ Industrial Propaganda Complex that emerges when any critique of Garland is made insists that justice is imminent. They bleat that Garland is merely “dotting the I’s and crossing the T’s”.

Which he is, in the word COMPLICIT.

Garland is not unique in his role as a mafia state enabler. He follows a long line of DOJ cover-up operatives marketed as saviors of American democracy: James Comey, Robert Mueller, Bill Barr, Cy Vance, and so on. Over and over, Americans are told that these prosecutors are going to “get Trump” and dismantle his criminal network. Over and over, they serve their real role, which is to run out the clock and allow criminal elites to escape accountability.

The FBI and DOJ need to protect Trump, because in doing so, they protect themselves.

Many fail to understand Garland’s role due to an elaborate propaganda network (the mechanics of which I will break down) and a reluctance to recognize complicity among officials who are often portrayed as feuding. It is easier to attribute disaster to one political party instead of examining networks and recurring figures responsible for a multitude of tragedies over the past twenty-five years.

Jamie Gorelick is one of these figures, a Forrest Gump of 21st century corruption. Like Garland, she is a Democrat who serves GOP objectives, the most notable of which for Garland was working as Ivanka Trump and Jared Kushner’s lawyer and getting them the White House clearances that they should have been denied due to conflicts of interest.

As a result of Gorelick’s actions, Kushner gained classified intelligence that he likely shared with or sold to foreign states, including Saudi Arabia, from which he pocketed two billion dollars, and Israel, to which he has been tied since birth due to his family’s long friendship with the Netanyahu family, to the point that Benjamin Netanyahu slept in Jared’s bed when visiting the United States.

Garland has refused to investigate Kushner. A likely reason is that, were he to investigate Kushner – who remains a profound national security threat – he would also be investigating his best friend.

It is one big club, and it is destroying our country.

Crises of institutional integrity are beyond partisanship. They cannot be fixed by elections. They can only begin to be remedied when the rot is revealed. The road to accountability begins with evidence, context, and history.

Reckoning with this horror is difficult, but an informed public is a powerful public. Never forget that state officials are paid to serve you. You deserve more than a plate of platitudes meant to weaken your capacity for critical thought.

Merrick Garland gained national prominence when he was blocked from the Supreme Court by Republicans in 2016. The refusal of the GOP to hold hearings gave the Americans the false impression that Garland is a staunch Democrat and defender of liberty.

In reality, the GOP refusal had little to do with Garland, but with their desire to pack the court with right-wing extremists once Trump ascended. Garland is not a right-wing extremist. He is a cog who serves corrupt interests under the guise of being “moderate” and “cautious” – stalling investigations and blocking evidence from public view. That is what he did during his brief tenure at the Clinton DOJ from 1994-1997. That is what he does at the Biden DOJ now.

GOP extremists have long praised Garland. In 2017, after Trump fired James Comey, Mitch McConnell suggested that Garland become the FBI director.

“I have spoken with the president about it. I recommended Merrick Garland,” McConnell said in May 2017. He recited the propaganda line that Garland “was the prosecutor in the Oklahoma City bombing case.” (Garland was not. The lead prosecutor in the Oklahoma City bombing case was Joseph Hartzler, and how that lie gets circulated will be explained later.) McConnell added that Garland “would make it clear that President Trump will continue the tradition at the FBI of having an apolitical professional.”

In October 2021, Donald Trump praised Garland as “a good man” and said he was glad Garland was Attorney General. At that point, the DOJ had not even opened an inquiry into the Capitol attack, a dereliction of duty that was obvious to anyone with eyes and ears, but which Garland’s backers staunchly denied until time had run out, and it was too late.

In other words, once Garland and Trump had achieved their goals.

.

.

.

. 

There is much more. I am only including highlights because if I were to list every crime she [Jamie Gorelick] abetted, I would have an epic.

It is time to move onto another job for which she remains largely uncredited: Merrick Garland’s chief propagandist.

From evidence like that, Kendzior says that 

the DoJ has a troll bot propaganda farm that

made the DoJ and Garland look good

It does look sort of suspicious

Kendzior's article about Garland and his close friend and mentor Jamie Gorelick is very long and packed with depressing details of corruption and sleaze, and including links to information that back up those details. Maybe all of this sounds like crackpot conspiracy theory to some, but to me it has the feel of truth, sad and discouraging as it is.

Based on this, I reassess Garland. He is not a timid incompetent defending his valiant DoJ institution. He more likely is a corrupt, complicit traitor who maintains the moral rot in the DoJ. If so, Garland's moral rot is on a level with DJT himself. 

Q1: Is it plausible that Garland is a corrupt, complicit traitor instead of a timid incompetent?

Q2: In view of the evidence that Kendzior cites, did Biden make a major mistake in making Garland attorney general, or did Biden know what Garland was but nominated him anyway (or did Obama err in nominating Garland for the supreme court)? 

Exactly what are you, just a scared and 

inept "institutionalist" or something far worse?

Christianity directly attacks Johnson Amendment in federal court

The Baptist Standard reports:

The National Religious Broadcasters association has joined a complaint alongside two East Texas churches calling for the Johnson Amendment to be declared unconstitutional. The complaint was filed in the United States District Court for the Eastern District of Texas in Tyler on Aug. 28.

Congress approved then-Senator Lyndon Johnson’s amendment to the U.S. tax code in 1954 that prohibited 501(c)(3) organizations such as charities and churches “from engaging in any political campaign activity.” In 1987, Congress added a clarification that the amendment also applies to statements opposing candidates.

According to a National Religious Broadcasters statement, the complaint details how organizations have “engage[d] in electoral activities that are open, obvious and well-known, yet the IRS allows some, but not all, such organizations to do so without penalty.”

The Internal Revenue Service, it continued, routinely “acts in an arbitrary and capricious manner” toward nonprofit organizations “that disfavors conservative organizations and conservative, religious organizations.” Such an unequal enforcement, it determines, constitutes “a denial of both religious freedom and equal protection.”

This is a very big deal, huge actually. The current USSC will probably declare the JA (Johnson Amendment) unconstitutional on grounds of undue burden on free speech, undue burden on religious freedom and/or anything else they can think of. The court might even find a way to apply the history and traditions test. If the JA is overturned, theocratic Christian nationalist (CN) church leaders will be free to fill their sermons with all the lies, slanders, fake American history, and poisonous bigotry, e.g., seething hate of the LGBQT community, that dominates dark free speech from CN elites. 

Paragraph 14 of the federal complaint reads as follows:

Plaintiffs [Christianity] contend that the Johnson Amendment, as written and as applied by the IRS, violates the First Amendment’s Free Speech Clause, Free Exercise Clause, the Fifth Amendment’s Due Process Clause (Void for Vagueness), the Fifth Amendment’s Due Process Clause (Equal Protection), and the Religious Freedom Restoration Act.

To be clear, if the JA is overturned, priests, pastors and other church elites will be free to openly threaten their flocks with things like excommunication, ostracism, expulsion from the church and condemnation to eternal damnation in Satan's lake of fire if they vote for the wrong candidate according to God's sacred and infallible will. 

The really interesting aspect of this lawsuit is the nature of the JA itself. The JA was passed into law as an explicit condition on a church maintaining its tax-exempt status, not an outright prohibition on speech or religious freedom. As it is now, CN churches and religious leaders still have significant freedom to speak on political and moral issues - they just can't explicitly endorse or oppose candidates while maintaining tax-exempt status. One source comments:

Repealing the Johnson Amendment would either require an act of Congress or the Supreme Court ruling that the law is unconstitutional. Neither of these possibilities have occurred. While there is frequently language introduced by Republican lawmakers to repeal it, such legislation has historically been unsuccessful. Most recently, in the Republican tax reform bill in 2017, repeal language was dropped due to the Senate’s reconciliation rules.

Radical Republican theocratic politicians failed to repeal the JA, most recently in 2017, so the next line of attack on the JA is the USSC. Churches already can implicitly endorse and oppose candidates but even that is not enough for the aggressive, kleptocratic CN wealth and power movement. Theocratic Christianity wants to rip off the JA fig leaf and go full Monty in politics. Churches can already say, for example, that politicians who support abortion rights are agents of Satan or otherwise terrible people in God's eyes. Churches already know exactly how to implicitly endorse or oppose a candidate without running afoul of the JA. 

The courts have consistently held that tax exemption is a privilege, not a right, and organizations can choose to forgo tax-exempt status if they wish to engage in prohibited political activities. That is the main barrier that the USSC has to somehow knock down if the authoritarian CN theocratic agenda is to take its power to the highest level so far. This lawsuit is the clearest example of the ravenous greed that constitutes a major motive and goal of the elites who control America's authoritarian radical right Christian nationalist wealth and power movement.[1]

Given the radical, theocratic intend of this USSC, this lawsuit is terrifying. If the JA does get invalidated, that will happen most likely in June-July of 2026 or 2027. In normal times with a normal USSC, the chances of repeal of the JA would seem to be low. But with this radical theocratic court, certain things that are implausible but important to the CN movement become possible, maybe even likely. 

No one thought the Roe v. Wade would be overturned, but it was. 

Footnote:

1. An anti-CN source comments about the CN wealth and power movement:

Is Christian nationalism Christian?

No, Christian nationalism is a political ideology and a form of nationalism, not a religion or a form of Christianity. It directly contradicts the Gospel in multiple ways, and is therefore considered by many Christian leaders to be a heresy. While Jesus taught love, peace, and truth, Christian nationalism leads to hatred, political violence, and QAnon misinformation. While Jesus resisted the devil's temptations of authority in the wilderness, Christian nationalism seeks to seize power for its followers at all costs. And while Christianity is a 2,000-year-old global tradition that transcends all borders, Christian nationalism seeks to merge faith with a single, 247-year-old, pluralistic nation.

Why should Christians oppose Christian nationalism?

Pro-democracy, pro-love Christians must speak out together to show the country that Christian nationalism does not represent Jesus or our faith. When we do this, we prove that the biggest critics of the Christian-nationalist ideology are in fact Christians, and thus disprove the source of its biggest power: the false perception that the religious-right speaks for all American Christians.

I am not the only person who sees CN as bigoted (anti-love) and authoritarian (anti-democracy).

What is a uniparty?

 ANYONE?

From Ralph Nader to Steve Bannon, self-styled populists and outsiders have disparaged Washington’s “uniparty.” When this critique turns to foreign policy, the uniparty is accused of groupthink and militarism—dragging the U.S. into unnecessary and endless wars while neglecting the concerns of regular Americans.

While the epithet is often overstated and used in bad faith, it contains a kernel of truth. Foreign-policy experts from both parties agree on a lot, and that consensus can lead to poor decisions. The wars in Gaza and Ukraine, as well as America’s geopolitical competition with China, expose a bipartisan problem of this sort that critics of U.S. foreign policy frequently miss.

Today’s uniparty isn’t defined by a zeal to export democracy and launch ill-advised wars against governments that don’t threaten us. Rather, it is defined, on both the Democratic and the Republican side, by a lack of initiative and an urge to do things on the cheap and halfheartedly, to manage crises instead of resolving them. It is also fundamentally dishonest, as it suggests that peace and security can be sustained without major sacrifices.

https://www.aei.org/op-eds/the-uniparty-is-real-but-it-isnt-what-you-think/

You hear a lot of griping about the alleged “uniparty” — really just relatively rare areas of agreement between Democrats and Republicans — but those gripes rarely address the most consequential, and harmful, areas where the two parties agree. Neither party wants to tackle Social Security, Medicare, or any other entitlement-reform proposal; both parties have convinced themselves that tariffs are the road to prosperity; and, to take an example near and dear to my heart, neither party is all that interested in investigating or discussing the origin of Covid anymore. 

Large, irreconcilable differences remain between Republicans and Democrats on such issues as immigration, environmental policy, guns, taxes, religious liberty, the role of the courts, and the politicization of government agencies. That is not to say there are no areas in which both parties are complicit in bad policy. They have both presided over years of ballooning budgets and skyrocketing deficits and have refused to address the entitlement spending at the root of our fiscal crisis.

Sure, there is a de facto uniparty............

https://www.nationalreview.com/the-morning-jolt/the-real-uniparty/

What is the Uniparty?

The uniparty is a political machine that dominates the landscape of American politics, a shadowy entity that transcends the traditional boundaries of the two-party system. Comprised of the establishment elites from both sides of the aisle, this unspoken alliance prioritizes the interests of the wealthy and powerful, maintaining the status quo and stifling any real change that might threaten their dominance. 

Through a complex web of financial interests, backroom deals, and media manipulation, the uniparty sustains itself, creating the illusion of choice while offering little in the way of genuine alternatives. Voters are presented with two sides of the same coin, each offering different flavors of the same failed policies, while those who challenge this system are dismissed as outsiders or extremists.

The uniparty's stranglehold on American politics has far-reaching consequences, undermining the democratic process and eroding trust in our institutions. It perpetuates a system that prioritizes the needs of the few over the needs of the many, leaving average Americans to suffer the consequences of a rigged game.

From taxation to foreign policy, the uniparty's influence is pervasive, and its impact is felt in every corner of society. Its interests are not those of the people, but rather those of the wealthy donors and special interests that keep it in power.

The uniparty is a threat to democracy and a barrier to progress. It represents a political system that has lost touch with the needs and aspirations of the people, and it is time for a change. Only by shining a light on the uniparty's inner workings and rejecting its tired narratives can we hope to restore true representation and democratic values to our nation

https://libertymaniacs.com/en-ca/pages/what-is-the-uniparty?srsltid=AfmBOooQhHNzbFoE_PyDCcKPzRpYiyvYsHMGmkPfNtGuKpYXs7YHxOyu

The "Uniparty" is a term that describes the globalist establishment's control over politics and policy to the extent that every or nearly every major political party or politician are controlled by them and, thus, have far more in common than different, policy-wise. It is essentially synonymous with the deep state, as it retains control almost regardless of which political party or politician is elected.

https://www.conservapedia.com/Uniparty

All makes sense, doesn't it? Doesn't it? 

A physical-chemical basis for memory discovered: What about consciousness & free will?

One of the central issues in neuroscience is understanding the basis of memory. Assuming that memory comes from just (1) regular physical matter (atoms, molecules, cells, etc.), and (2) forces known to science, then this discovery could go a long way toward understanding the basis of memory. A SciAm article describes the discovery:

Brain Scientists Finally Discover the 

Glue that Makes Memories Stick for a Lifetime

A long-running research endeavor reveals key chemical players that cement memories in place—and still more have yet to be discovered 

A milestone in the effort to answer this question came in the early 1970s, with the discovery of a phenomenon called long-term potentiation, or LTP. Scientists found that electrically stimulating a synapse that connects two neurons causes a long-lasting increase in how well that connection transmits signals. Scientists say simply that the “synaptic strength” has increased. This is widely believed to be the process underlying memory. Networks of neural connections of varying strengths are thought to be what memories are made of.

A synapse between two neurons, A and B

In the search for molecules that enable LTP, two main contenders emerged. One, called PKMzeta (protein kinase Mzeta), made a big splash when a 2006 study showed that blocking it erased memories for places in rats. If obstructing a molecule erases memories, researchers reasoned, that event must be essential to the process the brain uses to maintain memories.

[There were some problems with the 2006 study that raised questions about the PKMzeta memory hypothesis]

A new study published in Science Advances by Sacktor, Fenton and their colleagues plugs these holes. The research suggests that PKMzeta works alongside another molecule, called KIBRA (kidney and brain expressed adaptor protein), which attaches to synapses activated during learning, effectively “tagging” them. KIBRA couples with PKMzeta, which then keeps the tagged synapses strengthened.

A synapse showing the PKMzeta and KIBRA "glue" or

"tag" that strengthens the electrical-chemical connection 

between synapses involved in long-term memory

This reinforces one postulated mechanism of long-term memory formation. There are a couple of others the SciAm article discusses. There could be other memory mechanisms that remain unknown. Regardless, this PKMzeta-KIBRA tag discovery appears to be a fundamental step forward. Other memory-forming mechanisms may exist, but at least this one appears to rely only on physical matter and known forces in nature.

What about consciousness and free will?

This research still cannot rule out involvement of something not known to science. Neurons in the human brain can have thousands of synapse connections with approximately 1,000 to 10,000 other neurons. Only some of those are strengthened with the PKMzeta-KIBRA tag the researchers found. But why only some are strengthened is still unknown. Is that selective biological activity a manifestation of consciousness or free will? Maybe so.

Imagine a halo of thousands of synapses connecting 

to thousands of other neurons

The matter and known forces of nature alone still cannot explain consciousness or free will, assuming free will exists. Consciousness does seem to exist and free will probably does too. There seems to be an inexplicable a leap between matter and known forces of nature and manifestations of the human mind such as consciousness and free will.

At the moment, I cannot envision an experiment to test for a way(s) to discover a basis for consciousness based on what we currently know about matter and known forces of nature. Maybe experts can think of one. But at present, there is no definitive evidence that human consciousness requires anything beyond physical matter and the forces of nature. Maybe consciousness and free will are emergent properties of matter and forces of nature. 

Current technology cannot yet fully explain or detect consciousness solely within known material-physical processes. Things like AI-assisted "brain decoding" techniques can reconstruct speech and imagery from brain activity with increasing fidelity. Thoughts processes through AI have been transmitted over the internet, but is a thought like that conscious? I doubt it. Things like that can be called correlates of consciousness, but they are not necessarily consciousness itself.  

There are things we still do not understand. Probably always will be.

If it is all pre-programmed, then maybe 

we do not have free will?

Reframing affirmative action; Recent headlines

Mother Jones published an article about how the Democrats are reframing a potent authoritarian radical right talking point:

The affirmative action of generational wealth. That’s a smart reframing of a longtime conservative hobby horse.

Republican politicians and right-wing media have regularly attacked programs designed to counter the generational impacts of government-sanctioned discrimination in housing, education, and veterans benefits. Now they’re targeting diversity, equity, and inclusion programs—see JD Vance’s recently introduced “Dismantle DEI Act“—and trying to brand Kamala Harris a “DEI hire.” That’s a laughable assertion. (New York Times columnist Lydia Polgreen argues that the moniker applies more aptly to Vance.)

But the critics of DEI and affirmative action want to have their cake and eat it too. For example, if you, like our Supreme Court, think the use of race as a factor in college admissions should be illegal, that’s your prerogative. But I hope you are similarly inclined to outlaw the practice of elite colleges giving an admissions boost to children of alumni and to students (like Jared Kushner) whose parents are major donors. Because isn’t that, too, a kind of affirmative action?

The issue of framing is critically important in persuasion. Recently, the phrase freedom from has been voiced by some prominent Democrats and opinionators. That was applied in the context of freedom from, e.g., living with personal and economic hardships caused by global warming, and living in fear of mass murders linked to easy access to assault weapons. Maybe the Dems could reframe the socialist epithet as freedom from unregulated capitalism. Claiming freedom from fear of bankruptcy from unregulated capitalism-imposed medical costs might be another reframing opportunity. Another reframe opportunity might be freedom from religious bigotry and oppression from attacks on the LGBQT community.

If reframing sone key issues is what the Dems are considering, they are probably already aware of the fact that if they do reframe, there are two requirements. One is being persistent and disciplined in using their own frames consistently over time. The other is to never get pulled into using Republican framing.* Authoritarian radical right claims of "tax relief" could be turned into "middle class tax fairness" to implicitly point out that the rich already have massive tax relief. Reframing issues around core values like freedom, opportunity, and security, seem like a major opportunity for Democrats. Who knows, maybe the Dems want to improve their messaging game from whatever it is now.

* I posted about how important framing is in political rhetoric. One of the biggest mistakes a person can make is to step into an opponent's frame. By doing that, one put's one's self at a serious disadvantage. When in the wrong frame, a person usually has a much heavier burden of proof to debunk an opponent’s frame. A lot of contrary evidence and explanation is usually needed to overcome a bare assertion, lies or even a little evidence. Responses within an opponent's frame usually need to be too complicated to carry persuasive power.

____________________________________________________________________

____________________________________________________________________

 

Something seems to be changing for the worse with DJT, and his campaign, donors and political party. Some headlines carry that message.

Team Trump Makes Arlington Cemetery Fight Way Worse With Army Insult
Gold Star father slams Trump’s 'disgusting' Arlington Cemetery stunt near his son's grave

J.D. Vance Booed by Entire Crowd During Dumpster Fire Speech

If Trump loses, expect a Republican civil war

Trump’s Team Overruled Him on Debate Rules Out of Sheer Desperation

Firefighters Union Boos JD Vance—So He Calls Them ‘Haters’

Donald Trump claims ‘107%’ of new jobs are being taken by ‘illegal immigrants’

Trump Threatens to Jail Mark Zuckerberg for Life

The GOP is making false claims about noncitizens voting. It’s affecting real voters

‘The chilling effect’: behind GOP-led states’ aggressive efforts to stop some from voting

Jack White rips Trump campaign for posting band’s song: ‘Don’t even think about using my music you fascists’

Trump amplifies posts calling for televised military tribunal for Liz Cheney

Elon Musk's X labels NPR story on Donald Trump, Arlington cemetery as unsafe | Censorship

Jim Jordan targets daughter of judge from Trump’s hush money case

Trump Goes Full Fascist in Truth Social Posting Spree

Trump Goes on Crazed, Violent Rant Calling for Death of His Enemies

Trump Shares Social Media Posts with QAnon Phrases and Calls for Jailing Lawmakers, Special Counsel

There is a lot more like that in just the last few days. It feels like something has changed with DJT, but what that may be is unclear. A minor stroke or mental illness flare up? Or, maybe reporting is now more election-focused than a few weeks ago. Regardless, something feels different even if this is just authoritarian radical right politics as usual. 

InfoWars on the legal front

An extremely long post by Steve Vladek includes him defending himself against gross errors (at best) or lies (more likely) leveled at him by a prominent MAGA operative, Carrie Severino, President of the authoritarian radical right Judicial Crisis Network. Vladek is a prominent legal scholar and critic of DJT and MAGA generally. These are some parts of Vladek's post that deal with how Severino attacked and misrepresented him:

I wanted to use this week’s issue to address a piece published by Carrie Severino in the National Review on Friday—titled “The Left’s Lies About the Fifth Circuit’s Reversal Rate.” I’m not usually inclined to engage with Severino (or the NR more generally). But given that I’m one of the people Severino accuses of lying, it seemed worth summarizing exactly what her claim is and then explaining, in detail, why she both (1) completely misstates what I’ve previously written; and (2) makes some pretty egregious data-driven mistakes of her own. The former may help, if nothing else, to correct the record; the latter may be useful more generally because it underscores the dangers of superficial attempts to use data when trying to describe the Supreme Court’s output.

I wrote a piece in July for The Atlantic, titled “The Fifth Circuit Won By Losing,” which attempted to document both how bad a term the Fifth Circuit had at the Court and how much it nevertheless succeeded—both in the three cases in which it was affirmed (each of which came in ideologically charged disputes) and, more generally, in moving the Overton Window with respect to the kinds of arguments that are now viable. Although the piece is behind a paywall, here’s the central claim it made:

But for as bad a term as the Fifth Circuit would appear to have had, it still succeeded in shoving American law far to the right. First, even when the Fifth Circuit lost, it usually picked up at least one vote (and as many as three) from the justices, validating the non-frivolousness, even if not the correctness, of its extremist reasoning. Second, the losses have the effect of making the most radical Supreme Court in our lifetime appear to be more moderate than it in fact is—with the Court’s defenders seizing upon some of the reversals of the Fifth Circuit as proof that, despite a rash of controversial, ideologically divided rulings in other cases on everything from January 6 to environmental law to homelessness, the Court really is “surprising” in its moderation. Third, and most important, the Supreme Court still affirmed three of the Fifth Circuit’s outlier rulings—all in cases in which the three more liberal justices dissented. The Fifth Circuit lost a lot—and somehow it still won.

Enter, Carrie Severino, President of the “Judicial Crisis Network.” .... As she wrote, “In its chastisement of the Fifth Circuit, the Left willfully ignores the broader universe of appeals to the high court, and presents a seriously distorted picture in the process.” .... [S]he argues, anyone who criticizes the Fifth Circuit but doesn’t mention its “wins” or criticize these other courts (“commentators who do not feign scholarly objectivity”) is engaged in a double standard.

5th Circuit = TX, LA, MS

To limit the length of this post, here is what Severino accused Vladek of doing, and his response regarding radical federal appeals court decisions coming out of the hyper-radical 5th Circuit in the last term:

• First, Severino claimed that Vladek said the 5th Circuit has the highest reversal rate by the USSC, which is false. What Vladek said was the 5th Circuit had most USSC reversals of any other circuit, but with three affirmations. But of the three cases that the USSC did not reverse, they where radical right and pushed the legal Overton Window far to the right, which was the main point of what Vladek is arguing. Mistake or lie by Severino? You decide.

• Second, Severino treats all USSC cases as equal, a point that Vladek strongly rejects. Those three 5th Cir. cases the USSC upheld were major in their impact and reach, not medium or small. He points out that the USSC picks the cases it wants to hear and those vary widely in their legal impact. In essence what the USSC is doing is allowing authoritarian radical right cases to be filed in the 5th Cir. and letting that appeals court spew out radical right decisions that the USSC uses to convert the rule of law into radical right authoritarianism. It does not matter that most of the 5th Cir. cases get reversed. The few that are upheld is a major driver of the toxic radicalization of American law. So, is that sloppy analysis by Severino or good analysis? You decide. (IMHO, this is a superb propaganda tactic to obfuscate what the radical right is doing to American law)

• Finally, and this one is wonky (sorry), Vladek argues that Severino cherry picked a USSC emergency ruling to make the 5th Cir. look even less influential than it really is. Again, that reasoning by Severino rests on the flawed analysis that all cases are equally important. Vladek points out that if one includes all the emergency USSC decisions from the last court term, “it makes the Fifth Circuit look even worse.” 

Moving the window to the right or left

makes the radical and unthinkable

seem more acceptable and sensible

Normalizing radical and unthinkable concepts

makes them feel like something they are not

Vladek concludes his article with this:

I don’t know if Severino just didn’t read what she was purporting to criticize, or if she did. But it seems like we all ought to be more careful before we accuse anyone of “lying” about something related to the Supreme Court—especially when our accusations are based upon descriptively and methodologically flawed accounts of our own.

Q: Is a USSC decision about, e.g., a federal trademark infringement case by Jack Daniel's* as important as the Dobbs decision that overturned Roe v. Wade and eliminated the national right to an abortion, i.e., are all USSC cases about equally important?

* The subject matter of Jack Daniel’s v. VIP Products—a squeaky dog toy (Bad Spaniels) that resembles the iconic JD's whisky bottle and label, but with scatological puns in place of the original language on the whiskey bottle.