OPINION: The Dangers of the “Shadow Docket”

OPINION:

The Dangers of the Shadow Docket 

 

The conservative court is using the shadow docket to hide their partisan decisions.

OPINION: The Shadow Docket And It’s Fundamental Danger

The shadow docket consists of cases taken up on an emergency basis, outside the scope of the courts normal procedural order. . . .

By D. S. Mitchell

Partisan And Controversial Decisions

Recently it has been noted that the current court has disproportionately used the shadow docket to authorize its most partisan and controversial decisions. Nearly all of the court’s Covid-19 decisions have come from the shadow docket, specifically, both of its rulings on the CDC eviction moratorium came through this dark little understood process.

An Unsigned Opinion  

In August SCOTUS handed Biden a shocking ruling. The court ordered Biden to re-instate Trump’s “Remain in Mexico” program. Where did this ability suddenly manifest itself? The court has no authority over treaties with foreign governments. None. The outrage came in a single one paragraph unsigned opinion. The opinion gave no insight into the logic supporting the court’s decision to upend the constitutional separation of powers.  The court is now looking at the Texas abortion law. I’d call it a bit late. Less than a month ago the same court refused to take up the case, initially attempting to hide behind the shadow docket.

What We Expect

We fantasize the nine justices in their solemn black robes hearing robust debate in open court in front of spectators. Those venerable heads taking in the arguments  between opposing attorneys and ideologies, giving deliberate consideration to the legal issues of each individual cases. And then after long discussion, they issue their decisions to the world in long wordy opinions. But, that’s not what is happening folks. This heavily conservative court has slipped into a shadow zone, a place where justices lack the courage to sign their names to their own rulings.

Here’s How It Works

Here’s how it works. Lawyers are allowed to submit expedited briefs to make their “emergency” arguments, but they are not allowed to argue in person, in full view of the press and the public. These decisions don’t come after months of deliberation amongst the justices, but quickly and through whatever informal conversations the justices give time to the matter. Usually they don’t bother to explain to litigants the law or logic behind their decrees, instead issuing an order often amounting to a mere few sentences.

My Thoughts On The Matter

The conservative members of SCOTUS appear to be operating in bad faith, not  even bothering to make up legal reasons for their partisan hackery. Under “emergency” rulings the court is making up policy. Courts do not make policy. That is not their role. Unsurprisingly the policy this court concocts melds nicely with the Republican party’s political agenda. Using the shadow docket the court is attempting to cover it’s actions.

Hitting The Talk Shows

Recently several of the sitting justices, hearing angry rumblings across the country have taken to the airwaves. Their recent appearances across media platforms make it clear that the justices have noted that the public view of the supreme court is at its lowest level in decades. When you have justices making speeches at colleges and going on TV claiming they “are not partisan hacks” you can damn well be assured they know the public is on to them.

The Real Danger

The power now wielded by unelected conservative justices is unnerving to me, and should be worrisome to anyone, no matter their place on the political spectrum. Just to point out, any Executive Order signed by the president, any law passed by Congress can be undone in the dark of night, without reason or explanation. Since the Democrats lack the spine to proceed with court reform we can expect the six conservative judges to hold veto power over the Democrats entire political agenda.  Not just this year, or next, but for decades to come.

EDITORIAL: Who Will Judge The Judges?

EDITORIAL: Who Will Judge The Judges?

EDITORIAL: WHO WILL JUDGE THE JUDGES?

By  D.S. Mitchell

Turtles All The Way Down

According to absurdist and other folks more clever than I, there is no inherent meaning to anything. Not that there’s no meaning, that would be nihilism, just that all things are arbitrary at their core. As famed genius Bertrand Russell put it, while addressing the issue of infinite regress, it is ‘turtles all the way down.’ An odd phrase based on the metaphor of the world sitting on the back of elephants, which in turn stood on the back of a turtle. Fans of Terry Pratchett’s Discworld series of novels will likely recognize the concept.

The Price of Tea In China?

What does this have to do with the Supreme Court? Trust me, I’m getting there. The idea of ‘turtles all the way down’ also applies to society and the application of authority there in. Leaders, officers, and elites are not born. At least, supposedly, not anymore. Every position of power is designated by the people who constitute society. In a very real way the exercise of authority is ‘people all the way down.’ Humans chosen by other humans to hold power over them. In the context of a participatory democracy those humans are the elected officials.

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Kaill McNeil: Alter-Narratives 9/12/2021

Kaill McNeil: ALTER-NARRATIVES 9/12/2021

ALTER-NARRATIVES

BAD Company

By Kaill McNeil

Backstory

If you want to know what someone is going to do tomorrow, look at what they did yesterday. Same with corporations, which are really just collections of people. Don’t stop there;  the same goes for nations. Although the term nation no longer applies, the state of Texas thinks it is a nation independent of the federal government.

Once a Nation

Texas was for a time an independent republic after it gained independence from Mexico in 1839. Immediately Texas began clamoring to join the United States. On 12/29/1845 Texas gave up its independent republic status and became the 28th state of the United States of America. Sadly, on 03/02/1861 Texas after 15 years in the union decided it would join in armed rebellion against the United States of America.  As part of the Confederacy, Texas attempted to secede from the union for the purpose of perpetuating slavery within its borders.

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OPINION: Retire Justice Breyer

Supreme Court needs term limits

OPINION: Retire Justice Breyer

By William Jones

Consistent Defender

Stephen Breyer was appointed to the Supreme Court by President Bill Clinton in 1994.  Breyer has been a consistent defender of liberal priorities in cases involving abortion, marriage equality, voting rights, and other issues. There’s growing urgency on the left to see Justice Breyer step down from the court to be replaced by a younger liberal justice. This is only possible while Democrats are the majority party in Washington.

A Billboard Truck

In early April, the progressive group Demand Justice ordered a billboard truck to be driven around the Supreme Court building featuring the words “Breyer, retire.” The message was directed at Breyer, one of three remaining Democratic appointees on a court that has become increasingly dominated by conservative justices in recent years.  Much of that anxiety is informed by recent history. Liberal icon Ruth Bader Ginsburg did not retire when Democrats controlled the Senate during the Obama administration. Ruth Bader Ginsburg died from cancer at age 87, shortly before the 2020 presidential race. Republicans moved swiftly to fill her seat with Amy Coney Barrett. This cemented a 6-3 conservative majority on the court that legal experts say may soon undo many rulings that defined Ginsburg’s judicial career.

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RIP: Remembering The Notorious RBG

RIP: Remembering The Notorious RBG

By Anna Hessel

A Woman of Substance

This weekend the Jewish community celebrates Rosh Hashanah. It is the dawn of a new year. Truthfully, 2020 cannot end soon enough for me. Sadly, the loss of yet another icon marks this holiday as bittersweet.  Associate Justice of the Supreme Court Ruth Bader Ginsburg has died at 87.  So many giants in the struggle for social justice have died this year.  Justice Ginsburg stood emphatically for equal rights; her mother told her to be a lady, which meant being your own independent person.  She believed any state that controls a woman’s right to choose meant the denial of her full autonomy and full equality.  Ms. Ginsburg was convinced that it is essential for women to be decision makers. Having the responsibility of bringing up the next generation, it is imperative that women have control.

Appointments

With her unique beauty and  attractive style complete with black horn rim glasses she drew attention. This petite powerhouse has been featured in a number of lifestyle publications, such as Cosmopolitan, Mental Floss, Marie Claire, Town & Country, and Elle.  Concerts have been dedicated to her, and two films have been made about her life.  Jimmy Carter picked her for the United States Court of Appeals for the District of Columbia Circuit. Ms. Ginsburg was appointed to the Supreme Court in 1993 by President Bill Clinton.  I remember it well, for she was sworn in on the date of my second wedding anniversary – August 10th of that year.  Justice Ginsburg emphatically believed women belonged in all places where decisions are being made.  Her most fervent dying wish was to not be replaced until a new president is installed.  I will honor her memory with a vote for Joe Biden and Kamala Harris.

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OPINION: Watching Democracy Die

OPINION:

Watching Democracy Die

By D. S. Mitchell

Wisconsin Outrage

Television images captured thousands of voters in Milwaukee, Wisconsin standing in three block long lines, face masks in place, showered intermittently with hail and rain, risking exposure to COVID-19; to exercise their right to vote. This did not need to happen. This should not have happened. Voting should not be an obstacle course. Voting should be one of the easiest things, we as citizens, ever do. It should be as easy as licking an envelope. The vote by mail push is meeting stiff resistance from the far right, particularly from Donald Trump. The politicians fear it would endanger their grip on power. Republicans in Wisconsin, and other states have used voter suppression to shrink the electorate and limit access to the polls for decades.

Anger

I was disgusted at the sight of what was happening in Wisconsin. Furious to my core. So angry, I was crying. Tears are not always shed in weakness, or defeat. Some tears are a physical manifestation of a rage so great that when held back can lead to plate smashing, door slamming, and window breaking. At other times tears are shed because the injustice of events is beyond the understanding of the human heart. In 2018, according to the Brennan Center For Justice “17 million Americans, or 8% of the nation’s electorate, were removed from voting rolls.” The clear intent was to deny particular segments of the population the right to vote.

The Whigs

In the first days of our country there was no such thing as voter registration; white men just showed up and voted. In the mid 1800’s voter registration laws began to emerge. These laws, were designed to limit participation, not encourage involvement.  One of the first voter registration laws in the country was written by New York state Whigs. The Whigs wanted to limit the voting power of Irish Catholic voters in New York City. The Irish were mostly Democratic party voters. But, the Whigs had a plan, and the legislative power to suppress the power of the growing Irish Catholic vote.

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Trump Racism Is Bad For America-Part II

TRUMP RACISM IS BAD FOR AMERICA-PART ll

The Dark Jester

By T.K. McNeil

Trump Racism is Bad for America. I ended Part I of Trump Racism Is Bad For America by wondering aloud if we were about to return to the dark days of death squads, concentration camps, and gas ovens. Trump racism is obvious for anyone with eyes, ears, or a Twitter account. We are rocked out of our beds daily by angry and racially inflammatory 6 a.m. Tweets. Trump uses a practiced, coded language of dog whistles and red meat taunts that he pitches regularity to his MAGA hatted support base. The intent, an obviously planned effort to keep them agitated and ready for action. If nothing else, Trump’s base seems willfully ignorant and obsessed by fear. If Trump senses any ebbing in support he orders an extra rally, or maybe two; re-news attacks on the press; berates his pathetic Attorney General; but most notably, he intensifies attacks against immigrants, NFL players, and women. That’s how Trump racism works.

George H.W. Bus Approved Vicious Race Fear Attack Ads Against His Democratic Opponent Michael Dukakis

George H.W. Approved Race Fear Attack Ads Against His Democratic Opponent Michael Dukakis

Trump racism dressed as law and order. Have people forgotten Trump opened his campaign with an unprecedented tirade against Mexican “criminal, drug mules and rapists?” Trump has revived nativist themes that have not been heard aloud since George H.W. Bush. In 1988 HW supporters used the image of a black killer/rapist Willie Horton to effectively sabotage his opponent Michael Dukakis. Until now, that ad campaign was considered a true low point in political racist tactics.

Jump to today. In a similar tact Trump is replacing the face of black man Willie Horton with the brown face of illegal immigrant, and convicted cop killer, Luis Bracamontes. Hammering the anti-immigrant theme Trump claims that Democrats will open the country to criminals. Trump’s vitriol is toxic, but Trump is convinced that it was just such rhetoric that secured him the presidency. Instinctively, he keeps pushing the limits of what passes for barely acceptable political discourse toward an ever-darkening place.

More evidence of Trump racism keeps emerging.  Michael Cohen, Trump’s former personal attorney for over a decade opens up about Trump racism. On Friday 11-2-2018 Vanity Fair published a damning portrait of the president. According to Cohen, Trump made frequent racist comments, most particularly against blacks. Cohen claimed that Trump frequently used the N word and other demeaning statements made about black people, their intellect, their abilities, their communities and even their countries. Cohen confirmed to Vanity Fair writer Emily Jane Fox that language reported by Omarosa Manigault Newman in her book, “Unhinged An Insider’s Account of the Trump White House” was typically Trump. So, Trump doesn’t limit his hate; he hates everybody that isn’t orange.

Trump Racism Is Stoking Racial Fear And Hatred

Trump Racism Is Stoking Racial Fear And Hatred

Keeping the fire hot.  Trump has never stopped his campaigning. He has never become president of all the people. He is president of a core base and his goal is to keep them frightened and angry. He wants them fired up ready to attack whenever and wherever he points his accusatory finger. Trump racism is emerging more clearly as time progresses. Trump’s inflammatory language, reckless “otherism” and dehumanizing xenophobic attacks are clearly designed to divide the country.

Fear and Loathing is part of the performance.  It’s no surprise that we as a country have a scrubbed and shiny public face and a secret horrific Dorian Grey face.  That hidden-self, locked in the basement of our national identity is trying to come out of its imprisonment. All the while Trump, our Mad Hatter conductor, has had us on a head spinning ride of public debauchery, corruption and criminality. Trump careens from truth to delusion, to conspiracy theory, and back to racism all in blink of an eye.

Social Fears Are At The Root Of Trump’s Methodology.  That said, we all know that there is a portion of the American psyche that hates and fears immigration, that hates and fears the blacks, that hates and fears Jews, that hates and fears POC, that hates and fears the changing demographics of America, that hates and fears tomorrow, that hates and fears the unknown. Those societal fears are what Trump racism feeds on.

Donald Trump Uses The Flag And Other Symbols As Background Props For His Blatant Racism

Trump Uses The Flag And National Symbols As Background Props For His Blatant Racism

The foes of inclusiveness. The ability to whip the mentally susceptible and the White Supremacist extremist fringe into a frenzy of violence is easy to imagine. The increased racial and ethnic violence will become a growing problem as he continues to demonize the “others” in our society. This man has the biggest bully pulpit in the country and he is using it to inflame the worst elements of our society. He is using his position to promote fear and racial tensions as he divides the country with his Trump racist white supremacist agenda.

Ethnic and racial murder on the rise. The pipe bomb mailings, the synagogue massacre, the Kroger killings, the Portland light rail murders, the Heather Hyer murder are all separate crimes in separate geographical areas but with the same theme of racial and ethnic hatred.  There can be no doubt that Trump is pouring kerosene on the already raging flames of xenophobia and anti-immigrant sentiment that fueled his political rise. Violence is easy to stoke but the ability to tone it down is not likely to be found in Donald Trump. This should be of concern for all of us. Stability is what makes our great American life possible, and Trump with his firebrand demagoguery could potentially destroy that essential of our life.

The noise is so loud.  Since Trump’s election; historians, political scientists and psychologists have frantically been sounding alarm bells. How is it possible that after decades of progress the United States in the early part of the 21st century would become the epicenter of a growing firestorm of racial, ethnic and religious hate activity? It is important to remember that Hitler didn’t load the cattle cars and he didn’t personally switch on the ovens. He had his core of radicalized supporters to do that for him.

The Swastika was originally a geometrical symbol for divinity and the Nazi's turned it into a symbol of hate

The Nazi’s Took The Geometrical figure For Divinity And Morphed It Into The Most Terrifying Symbol On Earth

12,000 year old trinket. Twelve thousand years ago in a small Neolithic community in the Ukraine an early human carved a small ivory swastika and left it to be found by a modern team of archeologists. The swastika symbol has been found in archeological sites across the world from that cold Ukrainian dig to Celtic burial sites in Great Britain.

Pawns of a maniac. In a remarkable 15 year time span a geometrical figure representing  divinity and spirituality morphed into the symbol of the most murdering racist regime of the 20th century. A regime that was directly responsible for the murder of millions of human beings because they were religiously “different” than the majority. The six million dead; nothing more than pawns in a world shaped by racism and barbarism. A world where a demagogue manufactured an enemy through fiery hate-filled rhetoric.

Taking action.  A charismatic leader can point with raging illogical rants against racial, ethnic and religious targets making them the “enemies of the people.” Simply put the demagogue (Hitler in this case) convinced his followers that “his” enemies were “their” enemies. Sadly, Donald Trump incites similar reactions from his supporters. Wanting to help him, these angry, fearful, and malleable people begin to search for ways they can take action. Some will act as individuals, while others will join “militia groups.” Before long the supporters will turn the fiery hateful speech into hateful action. Getting people to hate “others” is all part of the Trump racism model.

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Trump Moves Quickly To Reshape Appeals Courts

Trump Moves Quickly To Reshape Appeals Courts

D. S. Mitchell

Sounds pretty boring, talking about the US judicial system. But here goes, because what Trump is doing could change court decisions in this country for the next two plus generations.

There are 179 judgeships on the US courts of appeals as authorized. The judges are all nominated by the president and confirmed by the Senate. These positions have lifetime terms.

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Sad, But True


Sad, But True

D. S. Mitchell

Calamity Politics is coming to you today from the North Oregon coast where we still respect women and protection of the weak, the sick and the elderly.

Sadly, it seems to me, that “people” never vote for policy. Which is what effects their every day lives.  Instead, politicians have figured out that “people” vote for hot button issues, the candidate’s appearance and stage comfort being other factors.  There seems to be a total disconnect for many people.  The individual political party platforms state clearly the values and direction of that party.  Furthermore, the history of the individual parties actions when in power are a pretty reliable predictor of how they will govern.

Characters like Rush Limbaugh, Sean Hannity and Newt Gingrich are continually ginning  up the right wing base with attacks against any and all “liberals” “lefties” “progressives”; and the “Democrats” specifically.

I’m proud to be a liberal if that mean, in the words of JFK, ” Someone who looks ahead and not  behind, someone who welcomes new ideas without rigid reactions, someone who cares about the welfare of the people—their health, their housing, their schools, their jobs, their civil rights and their civil liberties—someone who believes we can break through the stalemate and suspicions that grip us in our policies abroad. If that is what it means to be a ‘Liberal’— then I’m proud to say I’m a liberal.”

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NRA Assault

NRA Assault 

D. S. Mitchell

NRA Strategy

In an article for The Hill, Tim Devaney highlighted a change of strategy by the NRA. For the last 8 years the NRA has been kept on the defensive by the Obama Administration. With the installation of the Trump Administration it is full-bore ahead, shaping policy and writing bills favoring the NRA and its activist activities.

I Like The Second Amendment

I believe the 2nd Amendment is sacred.  It’s the best defense the citizenry has against a President that wants to overstay his welcome. We have seen it in the banana republics, where the generalissimo hangs on after an election. About 36,000 people died from gun violence last year. I do not feel it makes sense for the Congress to roll back regulations on guns. The NRA has engaged in heavy lobbying efforts (that means money, vacations, gifts etc). The mentally disabled should not have access to guns. The Republican House  reversed a Obama Administration regulation inside Social Security to restrict gun ownership.  There are similar regulations in VA rules, and it is expected that the House will also rescind those.

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