The rise of the Republican Supreme Court's anti-democratic, opaque shadow docket

In recent years, the radical right Republican Supreme Court has been increasingly relying on the shadow docket to advance the Republican's authoritarian anti-democracy, anti-transparency agenda. The shadow docket is a way for the court to decide issues while hiding both (i) the legal analysis behind the decision, and (ii) the judge's vote count. The shadow docket is an effective mechanism to keep the public from knowing what the court is actually doing and why.

NPR focused on a recent book, The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the republic, by legal scholar University of Texas law professor Stephen Vladeck. NPR writes: 

Justice Samuel Alito hates the term shadow docket, and gave an hour-long speech in 2021 at Notre Dame, suggesting that journalists and politicians have seized on it to wrongly portray the court as "sneaky," "sinister," and "dangerous."

Nonetheless the term has stuck.

Professor Vladeck argues that the court has only itself to blame.

"What impelled me to write the book is that over the last six years, we've seen the shadow docket become a lot less boring because the Supreme Court, and especially the conservative majority, has been using unsigned and unexplained orders to a degree and in ways which really have no precedent in the court's history," he said in an interview with NPR.

These cases are brought to the court by a state, or a company, or a person who has lost in the lower courts, often at an early stage, and that loser is now asking the Supreme Court to block the lower court order while the case proceeds through the lower court appeals process, which typically takes many months.

Up until relatively recently, these shadow docket actions were quite rare. The statistics tell the story, statistics compiled by Vladeck. During the 16 years of the Bush and Obama administrations, the federal government, the most frequent litigant in the Supreme Court, only asked the justices for emergency relief eight times--or on average once every two years. The two administrations together got what they wanted in only four of the eight cases, and in all but one of them the court spoke with one voice, and no dissent.

But in the Trump administration, and with a newly energized conservative majority on the court, the picture changed dramatically. In just four years, the Trump Justice Department asked the court for emergency relief an astounding 41 times, and the court actually granted all or part of those requests in 28 of the cases.  

'The dirty secret'

[The court says it will fully and transparently consider a shadow docket case later when it comes before them, but that is a dirty secret lie.]

But "the dirty secret is that later never comes," he says. "By the time the border wall case," or "all kinds of other challenges to Trump policies make their way back to the Supreme Court, at the far end of the normal litigation process, President Biden is in office and those policies have been discontinued, and the cases are thrown out."

That pattern, he says, was repeated over and over again, thus allowing Trump "to carry out policies that lower courts had held to be unlawful because the Supreme Court, through unsigned and unexplained orders" said, in effect, 'Go ahead President Trump, we'll deal with this later.'"

Vladeck's point is not that the Supreme Court was necessarily wrong, but that its unexplained shadow docket rulings today are both "inscrutable, and inconsistent." The patterns that emerge, he maintains, put the court in an "exceptionally unflattering light."

"The more you look at the body of work, the more it looks like the best explanation for when the court is intervening and when it's not, is partisan politics and not neutral substantive legal principles," he contends. 

No opinions to analyze

Vladeck points to a speech Justice Amy Coney Barrett gave in 2021, in which she assured the audience that the current court "is not composed of partisan hacks" and urged people to "read the opinions." But as Vladeck observes, "What's remarkable about the shadow docket is that so often the court is handing down rulings with massive impacts in which there's no opinion to read."

The collapse of democracy in Turkey

An editorial in the WaPo by Fareed Zakaria lays out what is by now a familiar story about how modern tyrants kill both democracy and inconvenient facts and truths:

Turkey points to a global trend: Free and unfair elections

Many of us had high hopes for Turkey’s recent general election, believing that a flat-out victory for the opposition could mark a break with the worldwide trend toward illiberal democracy. But perhaps we were all misguided, seduced by the lure of free elections and trusting ultimately in the will of the people. In fact, what happened in Turkey this past weekend highlights the latest and most disturbing trend in the rise of illiberal democracy.

While incumbent President Recep Tayyip Erdogan did not win outright reelection, the results were sort of a victory for him all the same. He did better than polls predicted and came out well ahead of his main opponent, leaving him highly likely to win a runoff scheduled for May 28. This is stunning, given that Turkey is a country in economic catastrophe, with sky-high inflation. The vote also took place just months after an earthquake, in which the government performed miserably.

Consider, though, the backdrop to these elections. Erdogan was up against Kemal Kilicdaroglu, the opposition candidate, a colorless bureaucrat without much charisma or eloquence. But the opposition had little alternative. The president had already eliminated from the field perhaps his most powerful potential rival, Ekrem Imamoglu, a charismatic politician from the same party as Kilicdaroglu, who was on a winning streak. In 2019, Imamoglu handily won the election for Istanbul mayor, a pivotal position that was Erdogan’s own path to power.

But on the flimsiest grounds, Erdogan’s party claimed fraud, and the electoral council ordered a fresh round of voting. Imamoglu won the second election by a larger margin. So Imamoglu was then charged with insulting public officials over the incident and was tried by a judiciary which has been widely described as packed with ruling party loyalists. Sure enough, last December, a court barred Imamoglu from politics and sentenced him to prison for almost three years. The decision is under appeal. In the meantime, though, Imamoglu has been prevented from running for the presidency.

Turkey’s political playing field is massively tilted in favor of Erdogan. The state lavishes funds on his supporters, and the country’s media is slavishly pro-government. Most of Turkey’s major media properties have been bought by business executives who are supporters of Erdogan. (The largest business group that maintained its distance from the president found itself mysteriously facing massive charges of tax fraud and ultimately sold its media holdings to a more compliant owner.)

State television, the country’s main source of broadcast news, relentlessly extols the virtues of Erdogan and his party and trumpets the achievements of the government. In April, state TV spent 32 hours on coverage of Erdogan versus 32 minutes for his opponent. Of all democracies, Turkey imprisons the most journalists. The Turkish government initiated more than 30,000 cases for the offense of “insulting the president” — in just one year (2020).

Erdogan’s government has systematically taken over ostensibly independent institutions, including courts and the body that controls elections. (If the May 28 runoff election turns out to be close and the opposition candidate comes out ahead, you can be sure that Erdogan will appeal — and that the election authorities will rule for him, just as they did in the case of the Istanbul mayoral vote.) Nongovernmental organizations face severe government investigation and scrutiny, limiting their ability to operate. The government has passed laws giving it tight control over social media and, over the election weekend, asked Twitter to block the accounts of about a dozen opposition figures. After February’s earthquake, when the government confronted intense criticism on social media for its mishandling of the disaster, it simply blocked Twitter for a while.

This is the next innovation in illiberal democracy. Elected presidents and prime ministers use their majorities to pass laws that give them sustained structural advantages over their opponents. They use government funds to shower their supporters with benefits. They file tax and regulatory cases against independent media groups, investigate journalists and NGOs, and reshape independent agencies and courts into compliant arms of the ruling party. They then hold “free” elections.

Erdogan’s tactics will seem depressingly familiar to citizens in many democracies around the world. Look at India, once home to fiercely independent media. Today, it has fallen to No. 161 in a world press freedom index issued by Reporters Without Borders. Look at Hungary, where the government and pro-government businesses control almost all the country’s media, and the body overseeing the judiciary effectively became an arm of the ruling party, drawing the ire of the European Union. (The office’s first head was a godparent to Prime Minister Viktor Orban’s oldest child.) Look at Mexico, where the president has tried to gut that country’s proudly independent election authority.

When elections are held in these circumstances, and international observers duly note that the ballots were properly cast and counted and then certify such elections to be genuinely competition, they are doing the world a disservice. We need a new vocabulary to describe this phenomenon. Are such elections free? Technically, yes — but they are also profoundly unfair.

Q: Is a rigged election actually free when people cannot vote for legitimate candidates they want to vote for? Is it better to call rigged elections a sham or fake election or a non-election than calling it free but unfair, or does it not matter much what the mainstream media calls rigged elections? 

Following the money that is killing democracy and civil liberties

The New Republic writes:

A few months before the midterms, with pollsters spewing red wave predictions and post-Roe conservatives planning to force raped children to give birth, a bit of political news added to progressives’ gloom. A Chicago billionaire had gifted anti-abortion Supreme Court fixer Leonard Leo the largest known tranche of dark money in U.S. history: $1.6 billion. The sum is staggering; it will finance at least a generation of extreme right-wing political proselytizing. And almost no one—except for the conservative cabal that bagged the whale—had heard of him.

Leonard Leo

The gift from nonagenarian electronics magnate Barre Seid (pronounced Barry Side) is effective altruism in reverse: a fire hose of cash aimed at destroying American liberal culture through lawsuits and support for politicians challenging gay rights, unions, environmental protection, voting rights, and public education. The money will last a good long while. Philanthropic recipients usually follow a 5 percent rule: They try not to spend more than 5 percent of the endowment per year. Seid’s pile is so large that it could return an average $136 million a year, or north of $230 million on a good year, to influence U.S. law and policy. Without ever having to touch the nut. For a sense of how enormous that is, consider this. The Heritage Foundation and its affiliates spent about $86 million in 2021. Heritage is a huge, and hugely influential, conservative think tank. Leo could create two Heritage Foundations and one more sizable organization on the side—all, again, without having to dip into the principal at all.

Barre Seid

Leo, a New Jersey Roman Catholic and grandson of an Italian immigrant who worked for Brooks Brothers, hobnobs around the upper echelons of American power .... Leo is a proud “Knight of the Sovereign Order of Malta,” and his long career has been motivated by fanatical opposition to women’s rights to reproductive choice. Since Seid handed the money over in 2021, part of the pile has been funneled into black boxes like Donors Trust, a mega-donor money-washing machine. Having succeeded at subjecting American women to forced pregnancy, Leo, 57, is directing the money toward other goals: stopping “woke” culture, ending federal regulations on climate change, and limiting voting rights. Ultimately, Seid’s money will be used to shore up society’s winners—the American oligarchy, inherited trusts, CEOs, self-made billionaires, corporations—against the demands of the weak. It will be used to make the United States a tougher and, for many, a nastier country, where big money always wins, under the eye of Rambo Jesus.

All that from a man nobody knows.

Mr. 999

Steven Baer is, like Leonard Leo, a career anti-choice fanatic, but with a political style from the Roger Stone School of Ratfuckery. The Illinois fringe conservative built himself a minor national reputation by shaming enemies like Donald Trump and Kevin McCarthy with salacious dirt. Even the conservative National Review finds Baer hard to stomach, calling him “the world’s most successful email harasser.”

Baer had his fetal rights epiphany as a student at Brown in the early 1980s, when he “saw photographs of piles of corpses at Auschwitz juxtaposed to photographs of piles of dead babies,” he told me, suggesting that legal abortion was equivalent to the Holocaust and abortion clinics the feminist version of Hitler’s gas chambers. He then spent much of his career raising hell and money from a wacky corner of fringe right-wing politics. 

What $1.6 Billion Means

Seid’s bequest is believed to be the largest dark money donation in U.S. history. Charitable nonprofits are required to disclose their major donors, but the IRS class of political recipients defined as “social welfare” groups like Leo’s Marble trust are not. “Seid’s donation seems to be one of the largest, if not the largest, single political donation ever given,” said Kathleen Enright, president of the Council on Foundations, a nonprofit association of philanthropic entities. “But to be clear, this is not a charitable contribution by any means. It is a political contribution made to support a political agenda.”

How it works is: If Warren Buffett sets up a charitable foundation, a 501(c)(3) organization under IRS rules, it must spend transparently. Political action committees engaging in candidate support also must disclose donors. But when a billionaire throws a fortune at a “social welfare,” 501(c)(4) status organization, the IRS doesn’t require donor disclosure. Beyond Leo and his coterie, nobody knows how the money is being spent, or whether Seid put any restrictions on it. If Leo’s past is precedent, the money will support cherished right-wing goals: expanded gun rights, further erasure of the wall between church and state, rollbacks of civil rights on various fronts, and federal and state judges who will rule favorably on those issues.

The NR article continues at length about the fanaticism and wealth that is a major source of wealth and power for the radical right Republican Party and American style fascism. What we are witnessing is an extremely well-funded, opaque, slow coup against democracy, civil liberties and inconvenient facts, truths and sound reasoning. 

If the American people could understand** what is going on here, most of them would oppose it. But this fascist effort to kill American democracy operates in as much secrecy as possible, which is a lot of secrecy. It also operates behind a powerful shield of dark free speech that effectively distracts, confuses and divides the American people. Public opposition to this evil political monster is splintered and diffused into weakness.

** By now, most rank and file people who still support radical right Republicans and Libertarians are, for the most part, psychologically and/or socially incapable of understanding what is going on. Facing the reality of what they actually support and empower with their votes is simply too painful to accept. The American fascist forces depend on two things. The first is the well-funded fascist elites like Barre Seid and Leonard Leo. The second is the deceived and betrayed rank and file voters who mostly unknowingly support and empower the elites and their American fascist agenda.

News bits: Mike was proved wrong; Tucker for president?; Etc.

While the stolen 2020 election hoax was in full swing, the pillow guy Mike Lindell kept publicly saying that he had rock solid evidence the election was stolen. At one public meeting, he laid out some evidence and promised a $5 million reward to anyone who could prove the evidence was did not prove the 2020 election was stolen. Lindell referred to the challenge as as the “Prove Mike Wrong” contest. In the crowd (small group of people?) at that public event, was Trump supporter Robert Zeidman. Zeidman was a computer programmer and data analyst by profession. Zeidman collected Lindell's evidence and in a couple of hours figured out that Lindell's evidence wasn't even evidence. It was just random stuff having nothing to do with the 2020 election.

Zeidman asked Lindell's company to pay the reward. Lindell's company refused. Zeidman went into arbitration and won. Lindell's company still refused. Lindell's company then filed suit in federal court to get a declaration that the arbitration was bogus and void. Now, Zeidman has filed suit in federal court to force Lindell to pay the $5 million prize, plus interest of 10 percent a year. A NYT article comments:

“It’s not about payment, it’s wrong. They’re just doing this trying to discredit the evidence and the evidence is all there,” Lindell said in an interview Friday. “We’re taking it to court. It’s just all corrupt.” 

The controversy grew out of an offer Lindell made ahead of a “cyber symposium” he held in August 2021 in South Dakota. In public and broadcast appearances, he claimed that he had data showing that the Chinese government had interfered with the 2020 U.S. presidential election, and he said he would pay a $5 million prize to any cyber expert who could prove that the material was not from that election.  

Zeidman examined Lindell’s data and concluded that it did not substantiate Lindell’s claims of fraud and in fact had no connection to the 2020 election.

Once can certainly enjoy the crass entertainment of this bizarre fiasco that a crackpot Republican elite is entangled in. But it is very much worth considering that elite, anti-democracy crackpot Republican radicals like Lindell will wind up in powerful positions in the federal government if any Republican candidate wins the 2024 presidential election. Lindell himself likely will be empowered if Trump wins. That thought is not nearly as entertaining.

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The Hill writes:

A political action committee to get former Fox News host Tucker Carlson to run for president is making its launch with an ad that praises him for mocking “woke nonsense” — and is aiming to pull the GOP presidential field to the right.

The Draft Tucker PAC, a hybrid PAC that filed paperwork with the Federal Election Commission in late April shortly after Carlson was ousted from Fox News, debuted an ad on Thursday evening that is set for an initial weeklong ad on the conservative Newsmax cable channel next week.

“Republicans need a new leader, and Tucker Carlson is ready to lead,” the ad says. “No one in America is more articulate and pins down leftists in both parties better than Tucker.”

And there are still millions of American adults who believe the Republican Party is merely conservative and reasonable, while vehemently arguing the Democratic Party is radical, socialist, tyrannical and/or pro-pedophilia/cannibalism. 

Of all the Republican contenders other than Trump, Tucker probably has the best chance of winning the GOP nomination. What a hopelessly screwed up political party. We are in deep trouble to say the least.

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The Daily Beast writes about a clever Republican disinformation lie that most of the radical right rank and file has probably internalized and will continue to believe:

Fox News Stoked Outrage Over Migrants Displacing Homeless Vets 

It Was a Hoax

Fox News and the rest of right-wing media went wild for a week over a now-debunked story about New York hotels booting homeless vets to accommodate asylum seekers

After right-wing tabloid The New York Post published the sensational report last Friday, Fox News and Newsmax ran wild with it, devoting dozens of segments (and countless online articles) to the indignation of “people who served our country and need a little boost” getting displaced by “illegals,” all while “these hotels are selling their soul for a check.”

Turns out, however, the whole story was made up.

There we have it. Shameless elite fascist Republican propagandists lie. And lie. And lie.

Fascist Republican dark free speech, it's what's for breakfast. And lunch, supper and snacks. All day, every day. 

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From the Yawn Files: A news article headline says that former Trump White House lawyer Ty Cobb is predicting that Trump will end up in jail as the slower than glacial Mar-a-Lago probe continues. 

Yawn. Nap time. That's white noise click bait. When Trump goes to jail, then there will be some news fit to print.

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Vanity Fair writes: Ted Cruz Launches Investigation Into Bud Light for Ad Featuring Transgender Influencer, Because No, He Doesn’t Have Anything Better to Do.

It's good to see elite fascist Republican politicians working diligently to solve America's serious, urgent problems. You know, problems like the existence of transgender children and adults who need to be cruelly harassed and oppressed. That will MAGA.

News bits

Bit 1 - Crackpots on parade

Current Affairs, the magazine of politics and culture, writes about the Democrat Kennedy in the 2024 race for president: Robert F. Kennedy Jr. is a Lying Crank Posing as a Progressive Alternative to Biden -- The only ‘herd immunity’ we need is against abysmal candidates like RFK Jr. He has spent decades as a professional liar and is not the kind of person who should be anywhere near power.

That seems to at least imply that Current Affairs won't be endorsing RFK Jr. in the 2024 elections. RFK Jr. is an anti-vaxx crackpot.

Bit 2 - Republicans undermine democracy and the courts

An opinion piece in Salon opines: 

Republicans prep with a new talking point: 

Jury verdicts don't count 

John Durham's report cements the new GOP line of attack on democracy: Rejecting the legitimacy of jury trials 

When E. Jean Carroll won her defamation and sexual abuse lawsuit against Donald Trump earlier this month, Republicans knew exactly who they wanted to blame. No, not Trump's defense attorney, who called no witnesses and offered no evidence in his client's defense. No, not Trump, who keeps undermining his weak denials of the crime by bragging about how guys like him "historically" and "fortunately" get away with sexual assault. No, they blamed the jury.

"That jury's a joke," huffed Sen. Marco Rubio, R-Fla. Sen. Tommy Tuberville, R-Ala., echoed the same claim, grousing about "a New York jury," as if it's preposterous to try a case in the same jurisdiction where the crime actually happened. Sen. Rick Scott, R-Fla., also took a swipe about the "New York jury."

Fascist Republican Party attacks on democracy continue . . . . . . . 

How the radical right thinks: Scrambled brains

The WaPO published a review written by Becca Rothfeld of the Josh Hawley book, Manhood: The Masculine Virtues America Needs. We all fondly remember Hawley for his brave salute (from behind safe police lines) to the traitors trying to overthrow government during the 1/6 coup attempt and then running like a coward to evacuate the Senate when things got too hot for this manly masculine man-stud.

Left: Brave Josh in solidarity with the traitors 

Right: Chickenshit Josh running away

Becca writes:

How to be a man? 

Josh Hawley has the (incoherent) answers.

In ‘Manhood,’ the senator joins a long tradition of those who bemoan masculinity’s endangerment and offer advice for saving it

For practically as long as men have existed, they have been in crisis. Everything, it seems, threatens them with obsolescence. As far back as the 1660s, King Charles II warned English men that a new beverage called coffee would destroy their virility, and in the early 1900s, opponents of coeducation worried that feather beds, dancing and even reading might emasculate little boys. Men were in peril at the turn of the 20th century, when the founder of the Boy Scouts cautioned that “we badly need some training for our lads if we are to keep up manliness in our race instead of lapsing into a nation of soft, sloppy, cigarette suckers,” and they had not recovered by 1958, when the historian Arthur Schlesinger Jr. reported in Esquire that “something has gone badly wrong with the American male’s conception of himself.”

A gender rule book is precisely what Sen. Josh Hawley of Missouri attempts to provide in “Manhood: The Masculine Virtues America Needs,” the latest in a long line of guides. Recently, there’s Jack Donovan’s “The Way of Men,” which boasts that it is for anyone who has ever “wished for one day as a lion,” and Jordan Peterson’s best-selling “Twelve Rules for Life,” which is nominally gender-neutral but in fact instructs readers in the art of masculinity (and which is a literal rule book). 

Hawley toes the same wavering line in “Manhood,” in which he posits that masculinity is, at once, a biological endowment and a personal achievement. .... But Hawley’s opus is less of a riot than its predecessors. As serious thinking about gender, works like “Iron John” and “Manliness” fail, but as parodies and performances, they succeed by dint of their sheer outrageousness. Hawley, a Republican and an especially dreary type of fervent Christian, is too much of a dour moralist to write, as Bly does, that inside every man lurks a “primitive being covered with hair down to his feet,” ....

Manhood” sees itself as a tragedy, not a farce. American men, it proclaims, are in dire straits. They are not working, getting married or raising children. Instead, they are taking drugs, feeling sorry for themselves and watching pornography on their phones. Hawley’s tone is alternately sympathetic and scolding as he suggests that men have become aimless and irresponsible, a development that will surely prove catastrophic for the country. “No menace to this nation is greater than the collapse of American manhood,” he writes, because “self-government” succeeds only when citizens cultivate “strength of character.” Women, it is implied, do not have enough of this precious resource to keep the country running.

Like a campaign speech, “Manhood” is an adventure in impressionistic and impassioned disorganization. Chapter breaks may as well be accidental; most passages could be reshuffled into any section without any loss of coherence. Hawley identifies six roles that men should occupy — husband, father, warrior, builder, priest, king — but never manages to distinguish them clearly from one another. Men in each guise are supposed to do hackneyed and abstract things, like “endure.” We are treated almost at random to tirades about the “chattering classes” and, quaintly, the French Revolution, which is characterized not as an assault on monarchy but as a “campaign of wholesale atheism.”  

Insofar as it is possible to impose an organizational principle onto “Manhood,” the book takes up four distinct projects, though not in any particular order. The first is halfhearted biblical exegesis. The second is wholehearted self-promotion. Hawley is keen to cast himself as a man of the people by neglecting to name his elite alma maters (Stanford and Yale Law School), ....  

Hawley’s third fixation is liberalism, defined not as a political system but as an all-encompassing ethos that consists, primarily, of the fetishization of choice. There is no sin for liberals, he writes, but “the sin of intolerance.” This faulty account of liberalism as a philosophy of personal morality, rather than a philosophy of state action, is buttressed by even faultier intellectual history. It would be impossible to survey all that Hawley gets wrong — suffice it to say that America would be considerably more interesting if the Democrats read as much German philosophy as he believes they do ....  

The final strand of “Manhood” is standard self-help fare, much of it inoffensive. Who would contest that you should “stop buying stuff to make yourself feel better” or, even more banally, “aim to do something with your life”? I too regard courage, assertiveness and ambition as virtues, but if men aren’t the only ones who display them, in what sense are they “manly” virtues in particular? Surely women, too, can aim to do something with their lives. Hawley writes that “a man is built for commitment,” but he thinks men are supposed to marry women, so presumably he thinks that women are built for commitment, too. Men are “meant to lead,” but wait, “Genesis says God directed man — and woman — to rule” (emphasis mine). Hawley writes that he admires protesters in Hong Kong, but wait, they are led “by a group of young, very young, men and women” (emphasis mine again).

This exemplifies how the minds of America's radical right elites think, or fails to think. What I hear from the other elites who speak up in public sound about the same as Josh the Manly Man. Incoherent blither, mindless drivel and reality-detached partisan lies and slanders are the rule, not the exception. 

Josh's bravery reminds me of Sir Robin.

Sir Robin with his proud family crest on his shield