You didn’t post this!

Hey i haven’t posted this yet but if you feel like it put this on your blog.

-Your Son Evan

[My 12-year old son has become somewhat obsessed with writing in my blog editor window when I leave it open on my laptop.  I think he’ll be very happy to see that I actually did post this.  Now, I’m going to have to get him to write something with more content.]

Republicans are great for the economy!

Kidding!  A break from Anthony Kennedy and the Supreme Court for this helpful reminder.

Drum:

For the past 40 years, the Republican playbook has been straightforward: they take office, cut taxes on the rich, and run up the national debt. Each time, Democrats have dutifully cleaned up their messes, only to watch them retake power and use the newly cleaned-up budget as yet another excuse to cut taxes on the rich and run up the national debt. Now Donald Trump has done it:

Needless to say, each time this happens Republicans start issuing dire warnings about the evils of a rising national debt as soon as the tax cut has passed. You’d think people would start cottoning to this eventually, but so far the con just keeps working. I wonder how much longer they can pull it off?

Very preliminary Anthony Kennedy thoughts

Thought for once I’d share my thoughts before seeing what everybody else’s are.

1) This doesn’t change things quite as much as people think.  On about 90% of issues, Kennedy is a doctrinaire conservative.  He’s basically a conservative with a soft-spot for gays rights and bare minimum abortion rights.  Now, those are important issues, but all those 5-4 votes we just had– those don’t change.

2) The fact that Trump will look to appoint a nominee who will overturn Roe and Obergefell is huge.  The simple fact is the right to a legal abortion (in most of red America) and the right to same-sex marriage is absolutely at risk.

3) #2 presents a huge electoral advantage for Democrats.  I think there’s a lot of people who aren’t so pro-life when you start talking about taking away Roe v. Wade.

Likewise, many will be especially politically activated at the idea of the Supreme Court taking away the right to same-sex marriage.  Meanwhile, Trump will be under huge pressure from his Christianist base to appoint a judge who will do just these things.

4) Given the theft of a Supreme Court seat for Neil Gorsuch, I’m honestly in favor of Democrats taking pretty much any historically unprecedented action that makes this harder for Trump.

The asymmetry of “civility”

Normally, I just save good twitter threads for quick hits, but this twitter thread is too good so I want to make sure you don’t miss it.  Political Scientists Lilliana Mason on how the roots of Republicans obsession with being outraged by liberals lie in the fact that the Republican party is the identity politics party– the white identity politics party.  Just read it:

It’s okay to discriminate against Muslims

as long as you pretend you are not.  Or so say the Supreme Court’s conservatives when it comes to the travel ban.  If you learn one thing about politics this week, you need to understand how epically awful the 5 conservatives’ decision was in Hawaii v. Trump.  It truly did essentially say to the U.S government, discriminate all you want, provided you 1) claim that your actions are motivated by national security, and 2) don’t specifically mention the people you are discriminating against.  A horrid decision that, I truly believe will go down in infamy.  Lots of great analysis.

Scott Lemieux:

The Court has never held, however, that the deference owed to the president over national security was absolute. Indeed, in a protesting-too-much conclusion to his desultory opinion, Chief Justice Roberts acknowledges that the Court’s upholding of FDR’s internment of people of Japanese descent in Korematsu v. United States “was gravely wrong the day it was decided, has been overruled in the court of history.” Even the context of world war, the chief justice acknowledges, should not immunize presidential actions taken out of racial or religious animus from judicial scrutiny.

These words, however, ring hollow in light of the Court’s approval of an order plainly motivated by anti-religious bias and — contrary to the majority’s assertion — justified by national security pretexts that are far from “persuasive.” As Justice Sotomayor says in a powerful dissent joined by Justice Ruth Bader Ginsburg, “By blindly accepting the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.” The Court’s apparent conclusion that the Court can serve as a check on racial and religious animus in the name of foreign security several decades in retrospect but not contemporaneously is cold comfort indeed… [emphases mine]

But — as the chief justice’s condemnation of Korematsu makes plain — it’s simply not true that the president’s order must be “free from judicial scrutiny” just because it has an alleged security justification. The Constitution remains in force; alleged national security concerns do not make constitutional an executive order motivated by religious animus. Like Justice Felix Frankfurter’s claim in Korematsu that the racist order upheld by the Court was “their business, not ours,” this is unconscionable buck-passing that will not withstand historical scrutiny.

Aziz Huq:

Three times in American history, the Supreme Court has been asked to speak to a law, neutral on its face, yet rooted in a popular hatred or intolerance of minorities. Three times, it has chosen to ignore the real reasons for the law.

Three times, it has instead given a free pass to laws and policies predicated on discriminatory judgments that our Constitution supposedly bars.

The first was Plessy v. Ferguson. In 1896, the Plessy Court upheld Homer Plessy’s conviction under Louisiana’s law mandating “equal but separate” railroad carriages. The central plank of the Court’s argument was simple: If Homer Plessy experienced a “badge of inferiority,” it was “not by reason of anything found in the act,” but “solely” because he chose to view the law that way.

The second was Korematsu v. United States ­ — the Japanese internment camp case. Famously, the caseupheld in 1944 an executive order by President Franklin Roosevelt, authorizing “military areas … from which any or all persons may be excluded.” The Court reviewed “evidence” that Congress had gathered about the Japanese government’s “dissemination of propaganda and … maintenance of … influence” among Japanese Americans.

It carefully framed its Korematsu opinion as focused on a policy of “exclusion,” ignoring the network of civilian assembly centers and “relocation” camps — as the internment camps were euphemistically known — that ultimately held between 110,000 and 120,000 people.

The Court expressly refused to look beyond these proffered justifications — justifications that in the fullness of time were revealed as false…

The third case, of course, is Hawaii v. Trump. In upholding the president’s travel ban, both Chief Justice John Roberts’s bare majority opinion and Justice Anthony Kennedy’s concurring opinion go out of their way to reject the suggestion that religious animus motivated the ban, and they distance the Court from President Donald Trump’s many hateful and discriminatory statements about Muslims.

The majority opinion quoted a few, brief snippets of the president’s anti-Muslim remarks. But it was left to Justice Sonia Sotomayor, in her dissent, to remind us of just how numerous and nasty those remarks were. She noted, among other examples, Trump’s recurring obsession with the massacre of Muslims in the Philippines by Gen. John J. Pershing, in the early 1900s.

Trump at least twice approvingly repeated the apocryphal story that Pershing’s troops used bullets dipped in pigs’ blood as they executed Philippine insurgents. (The theme of no due process for racial and religious minorities is hard to miss).

The justices’ assertion that the president’s words do not reflect the religious neutrality of the policy, as written, is empty. The logical core of the travel ban decision is the idea that the government prevails in a national security case so long as it can muster some — any — trace of evidence of a legitimate motive. So long as a policy is “plausibly related to the Government’s stated objective to protect the country,” Chief Justice Roberts explained, it survives constitutional attack…

If that’s true, the courts are toothless as a check on discrimination. Court challenges are then Kabuki theater, not a quest for compliance with our best ideals. The world is complex enough, and empirically messy enough, that it will simply always be possible for governments to whip up a “rational” justification for illegitimate acts, even if the true motivations are quite different. I can imagine almost no national security or immigration policy, even if justified to the public in terms of pure animus, and adopted in that spirit, that could not be re-described in way that would pass the test the Supreme Court just used.

Dana Milbank:

Renouncing the 1944 Korematsu v. United States decision, which upheld internment camps for U.S. citizens and noncitizens of Japanese descent during World War II, Chief Justice John G. Roberts Jr. wrote: “Korematsuwas gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitu­tion.’ ”

It should take the court of history much less time to conclude that the Roberts Court was likewise wrong in deciding to uphold President Trump’s travel ban. With the frequency of Trump’s broadsides against the justice system and the rule of law, it shouldn’t be long at all…

The legal test was whether a “reasonable observer” would think the travel ban reflected religious bias. Roberts believed not, because “the text says nothing about religion” and Trump’s order “is facially neutral toward religion.” He dismissed the many anti-Muslim statements Trump has madeas “extrinsic statements.”

Extrinsic?

“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on,” the Trump campaign proclaimed…

This 5-to-4 conservative majority says the travel ban isn’t discriminatory because it doesn’t use the word “Muslim.”

By the same logic, the hypothetical mentioned in arguments by Justice Elena Kagan would be kosher: An anti-Semitic president could ban all Israelis from entering the United States, if he didn’t use the word “Jews.”

If the court applied the same “facially neutral” standard to segregation-era laws (rather than intent and impact), cities could ban people in black-majority neighborhoods from riding the bus, if the statute didn’t mention race.

Dara Lind:

By upholding President Donald Trump’s travel ban (in its third iteration) in Trump v. Hawaii on Tuesday, the Supreme Court did Trump an enormous favor: It pretended he didn’t exist.

Chief Justice John Roberts’s majority opinion (signed onto by the Court’s three other conservatives and “swing vote” Anthony Kennedy) is a clear declaration that the executive branch had the legal power to indefinitely restrict certain visa holders and immigrants from several countries, as the current travel ban (signed in September) has done since it was allowed to go into effect in December. The opinion scrupulously avoids any defense of Donald Trump, as an individual, in deciding to order such a policy.

But by ignoring Trump, the Supreme Court has sent a different message: that nothing Trump is doing is more damaging to the presidency than what the Supreme Court would do if it tried to restrain him…

It’s hard to overstate the extent to which Roberts’s majority opinion talks about the presidency as if it’s not currently being occupied by any human at all — or, at least, not by Donald J. Trump, a president who has personally attacked several members of the federal judiciary and was last seen mocking the idea of using “judges and court cases” to help process immigrants who enter the US illegally.

On one hand, Roberts (per usual) deferred to the past: Supreme Court precedents that give the executive branch broad authority not just to set policy when it comes to immigration, but to shield that policy from judicial review…

The other way that Roberts wrote an opinion upholding Trump’s policy as if Trump wasn’t involved was by assuming that, frankly, Trump wasn’t.

Roberts’s opinion, following the cue of Solicitor General Noel Francisco (who argued for the travel ban at oral argument for the case in April), relied heavily on the idea that the current version of the travel ban wasn’t Donald Trump’s policy, but instead “reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”

Because that policy process was normal, Roberts ruled, the Court lacked the authority to plumb too deep into what might have motivated Trump to ask for the process. The bureaucracy cleansed the travel ban of its Islamophobic “taint.”

Adam Serwer on John Roberts:

For years, Chief Justice John Roberts has been concerned with the question of prejudice. But it’s not bigotry toward his fellow Americans that has occupied his thoughts—it’s attempts to address the bigotry.

As a young attorney in the Reagan Justice Department, Roberts wrote that amending the Voting Rights Act of 1965 to ban practices that had the effect of discriminating against black voters, and not just those that exhibited such intent, raised “grave constitutional questions.” As chief justice, Roberts asked during oral arguments over Section 5 of  the Voting Rights Act, which targeted states with a demonstrated record of discrimination for heightened review, “Is it the government’s submission that the citizens of the South are more racist than the citizens of the North?” It wasn’t the history of disenfranchising Americans on the basis of race that provoked the chief justice; it was the suggestion that ongoing policies that result in lower rates of black voting might be racist…

Bigotry exists. But laws that secure people’s rights against that bigotry are what have occupied Roberts’s concern.

Roberts’s approach to the question of prejudice was perhaps best articulated in his 2007 opinion striking down school-desegregation plans that consider race, in which he wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” As long as there is no clear evidence of an intent to discriminate, Roberts argued, discrimination has not taken place, no matter how obvious the impact. But if you acknowledge that a group is being discriminated against and extend it protections or benefits in the process of trying to address that discrimination, that is the real racism. Roberts’s jurisprudence puts into the polite language of the law the belief that accusations of prejudice are worse than prejudice itself.

A brief big picture take from Lemieux:

Today’s 5-4 Heritage Foundation position papers from the Supreme Court:

More on both later, but this is a ridiculously hacky and partisan court, and the fact that Republicans have maintained control of the Supreme Court despite losing the popular vote in 6 out of 7 presidential elections has been immensely significant. It’s Donald Trump’s Court all the way.

And, just because, here’s a Yale law professor arguing that the Court decided the case correctly.  I think it is the best case that the Court decided correctly, but it doesn’t take a law professor to see that this logic far too easily can lead to a series of discriminatory outcomes whenever the government proclaims “national security!”

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