FASCIST AMERICA 2026: Wajahat Ali and Joy Reid are Two Of the Greatest and Most Important Journalists, Public Intellectuals, Political and Social analysts, Independent Media Mavens, and Utterly Fearless and Courageous TruthTellers in America today. They are also both penultimate “National Treasures” a tried and true cliché that doesn’t even begin to describe just how truly valuable and necessary they are to any honest, profound, and genuine public discourse in this country where rampant criminality pathological liars, conmen/women, thieves, tyrants, and predators thrive at the collective expense of all of us, and especially any black, brown, yellow, and indigenous people who DARE to tirelessly confront and furiously fight and defeat all vestiges of White Supremacy, Misogyny, and Xenophobia in the world and especially in the 'United Hates'…Thank you from the bottom of our (broken) hearts Waj and Joy. WE LOVE YOU…

America Continues to Coddle Weak, White Conservative Men with Joy Ann Reid!



Wajahat Ali

May 5, 2026

VIDEO: 
https://www.youtube.com/watch?v=6-zVogLmgLk

#Politics #Trump #MAGA


Joy Ann Reid joins me to discuss the ridiculous double standards America has when it comes to weak, incompetent, conservative men like Donald Trump, Pete Hegseth and RFK Jr. We also discuss the self-destructive nature of both white supremacy and capitalist greed as billionaires are hijacking our institutions, media and democracy. I also find time to spill some tea and mock the worst people who deserve it


thelefthook.substack.com



#Politics #Trump #MAGA #News #BreakingNews #USA #Viral #Trending #Media #debate #uspolitics #trump #news #breakingnews #substack

https://www.joyannreid.com/p/sam-alito-is-a-salty-little-bitch?r=x9iw&utm_campaign=post-expanded-share&utm_medium=web&triedRedirect=true

A Daily Reid

 
Sam Alito is a salty little bitch, and Justice Ketanji is all of us

 
Alito can't handle the truth, but KBJ makes him face it every day

 
by Joy-Ann Reid
May 4, 2026
Joy's House
Substack

Sam Alito knows he’s wrong. He just doesn’t want anyone to say so out loud.

And so when he and his corrupt Gang of Six rushed, in unprecedented fashion, to make his “Fuck Them Blacks” ruling go into effect immediately, rather than in the 32 days it almost always takes for a Supreme Court decision to activate, he didn’t expect to be challenged. Not least by the “uppity” manifestation of the very people whose rights he’d just taken a dump on, to help John Crow live his lifelong dream of crushing the Voting Rights Act.

And because his May 4 order gets published first, he issued a pre-emptive strike, declaring at the end of his command that those pro-Republican Louisiana maps get on the books yesterday:

The dissent in this suit levels charges that cannot go unanswered. The dissent would require that the 2026 congressional elections in Louisiana be held under a map that has been held to be unconstitutional.* The dissent does not claim that it is now too late for the state legislature or the District Court to adopt a new map that complies with the Constitution. Nor does the dissent assert that it is not feasible for the elections to be held under such a map. Instead, the dissent offers two reasons for its proposed course of action. One is trivial at best, and the other is baseless and insulting. [Emphasis added]

The first is compliance with the 32-day default rule set out in this Court’s Rule 45.3, but as the Court’s order explains, there is good reason to depart from the default rule here. The principal reason for the 32-day default rule is to give a losing party time to prepare a petition for rehearing. But here, the Robinson appellees have not expressed an intent to file such a petition, much less set out any ground on which a petition might be based. And the need for prompt action by this Court is clear. The date scheduled for the beginning of early voting in the primary election has already passed. The congressional districting map enacted by the legislature has been held to be unconstitutional, and the general election will be held in just six months.

The second reason offered by the dissent is that we should allow the 32-day period to run out in order to “avoid the appearance of partiality.” Post, at 3 (opinion of JACKSON, J.). But the dissent does not explain why its insistence on unthinking compliance with Rule 45.3’s default rule does not create the appearance of partiality (by running out the clock) on behalf of those who may find it politically advantageous to have the election occur under the unconstitutional map.

The dissent goes on to claim that our decision represent an unprincipled use of power. See post, at 4 (“And just like that, those principles give way to power”). That is a groundless and utterly irresponsible charge. What principle has the Court violated? The principle that Rule 45.3’s 32-day default period should never be shortened even when there is good reason to do so? The principle that we should never take any action that might unjustifiably be criticized as Partisan?

Yes, yes, Sam. Who needs that “unthinking compliance with the rules” crap when you can lock in your favored party’s control of the House and its nasty, dangerous gavels with which Congress might investigate trivialities like … say … corrupt gift-taking by members of the Supreme Court…

Methinks Mr. Right Wing Flags doth protest too much! He seems to know how blatantly partisan he and his flow British Royals state dinner attendees look to the rest of us, and just as he did on his “bitch to the right wing press” tour following his Dobbs abomination condemning American women to uterine chattel status, he is scowling and pouting that anyone would dare to call him out. And call him out KBJ certainly did.

And as per usual, her dissent is one for the ages. It lands with this:

These post-Callais developments have a strong political undercurrent. Louisiana’s hurried response to the Callais decision unfolds in the midst of an ongoing statewide election, against the backdrop of a pitched redistricting battle among state governments that appear to be acting as proxies for their favored political parties.2 And as always, the Court has a choice. By my count, we have granted an application to issue the judgment forthwith over a party’s objection only twice in the last 25 years. See Whole Woman’s Health v. Jackson, No. 21A220, 2021 WL 5931622 (Dec. 16, 2021); Order in Adoptive Couple v. Baby Girl, No. 13A7, etc. (June 28, 2013). To avoid the appearance of partiality here, we could, as per usual, opt to stay on the sidelines and take no position by applying our default procedures.

But, today, the Court chooses the opposite. Not content to have decided the law, it now takes steps to influence its implementation. [Emphasis added] The Court’s decision to buck our usual practice under Rule 45.3 and issue the judgment forthwith is tantamount to an approval of Louisiana’s rush to pause the ongoing election in order to pass a new map.3

And make no mistake: That course of action does not follow from the Callais decision itself. The question whether our decision should affect the map to be used in the ongoing primaries raises a host of legal and political questions that are entirely independent of the issue in Callais. Among the legal ones, there is the Court’s previous insistence that — even at the cost of letting partisan gamesmanship corrupt our democracy, see Rucho v. Common Cause, 588 U. S. 684,721 (2019) (KAGAN, J., dissenting)—courts should not “ ‘risk assuming political . . . responsibility for a [partisan map-drawing] process that often produces ill will and distrust,’ ” id., at 704 (majority opinion). There is also the so-called Purcell principle, which we invoked only five months ago to chide a federal district court for “improperly insert[ing] itself into an active primary campaign.” Abbott v. League of United Latin American Citizens, 607 U. S. ___, ___ (2025) (per curiam) (slip op., at 2).

The Court unshackles itself from both constraints today and dives into the fray. And just like that, those principles give way to power. Because this abandon is unwarranted and unwise, respectfully, I dissent.

Good sis is a better woman than me for including the word “respectfully.”
Coming up this week:

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https://www.yahoo.com/news/articles/unwarranted-unwise-justice-ketanji-brown-190000893.html
 

‘Unwarranted and unwise’: Justice Ketanji Brown Jackson gives conservatives justices a lashing over voting rights ruling

 

by Gerren Keith Gaynor
May 5, 2026
The Griot
Yahoo! News

 

The Harvard Law-educated justice noted that SCOTUS has only broken its 32-day timeline to return a case only twice in the last 25 years.

“The Court’s decision to buck our usual practice under Rule 45.3 and issue the judgment forthwith is tantamount to an approval of Louisiana’s rush to pause the ongoing election in order to pass a new map,” noted Jackson.

She added, “The Court unshackles itself from both constraints today and dives into the fray. And just like that, those principles give way to power. Because this abandon is unwarranted and unwise, respectfully, I dissent.”

Monday’s blunt dissent comes weeks after Jackson gave a rare rebuke of her colleagues during a lecture at Yale Law School. She called out the conservative majority for its unusually frequent rulings in favor of President Trump’s emergency docket requests, allowing his administration to carry out many of its policies before they are fully litigated in court — some of which she noted could be illegal.

“Are we going to allow him to do this thing, this thing that is being challenged in the interim, while we are evaluating whether or not that thing is lawful?” Jackson queried. “The only way to make that determination without having it just completely collapse into forecasting the merits is to focus on what is going to happen if he does this thing concretely in the real world, versus not.”

Tiffany Royster, Esq., associate counsel at the National Council of Negro Women, notes that Jackson’s vote in the Supreme Court is “for the most part, overwritten every time.”

“Her dissents are obviously in the minority, and just thinking about the 6-3 makeup of the court, the majority is getting to decide how these cases are decided, and they necessarily don’t share her perspective on the issues,” Royster tells theGrio. “She really does have very little formal power, the 6-3 makeup, but she’s using her voice and using her voice in a way where she’s not staying silent.”

Monday’s blunt dissent comes weeks after Jackson gave a rare rebuke of her colleagues during a lecture at Yale Law School.

Justice Ketanji Brown Jackson is continuing to scold her conservative colleagues on the U.S. Supreme Court. Following the high court’s gutting of the Voting Rights Act of 1965 in Louisiana v. Callais, nearly a week later, the conservative majority made a ruling that sets the path for the state to halt its primary election — which is already underway — to redraw its map and eliminate a second majority-Black district that the court shockingly ruled unconstitutional.

The latest SCOTUS order, issued on Monday evening, speeds up the normal 32-day timeline before the justices formally return a case to the lower court.

Justice Jackson, the first Black woman to serve on the nation’s highest court and the most junior member of the bench, did not mince her words when calling out the judicial ruling and what she described as the potential for partiality in an ongoing political issue sparked by President Donald Trump.

“To avoid the appearance of partiality here, we could, as per usual, opt to stay on the sidelines and take no position by applying our default procedures,” Jackson wrote in her four-page dissent. “But, today, the Court chooses the opposite. Not content to have decided the law, it now takes steps to influence its implementation.”

Less than 24 hours after the Supreme Court ruled on April 29 that Section 2 of the Voting Rights Act does not require Louisiana to have two majority-Black districts despite African Americans making up more than 32% of the state’s population, Governor Jeff Landry indicated that he would call an emergency to suspend the state’s primary elections already underway in order to redraw the congressional map.

The move seeks to give Republicans a political advantage, as states across the country are engaging in gerrymandering following Trump’s 2025 call for Texas to defy tradition and redraw its map to give his party at least five additional seats in the U.S. House of Representatives. As the president faces tanking approval ratings, most notably on the economy and his signature policy issue of immigration, the gerrymandering fight is his last-ditch effort to keep control of Congress in 2027. Trump has warned that if Democrats win the majority, he will be impeached.

“The question whether our decision should affect the map to be used in the ongoing primaries raises a host of legal and political questions that are entirely independent of the issue in Callais,” writes Justice Jackson, who pointed to prior decisions by the court that Monday’s ruling seemingly defies.

“Courts should not risk assuming political . . . responsibility for a [partisan map-drawing] process that often produces ill will and distrust,” says the former U.S. District and Court of Appeals judge. “There is also the so-called Purcell principle, which we invoked only five months ago to chide a federal district court for ‘improperly insert[ing] itself into an active primary campaign.'”

WASHINGTON, DC – OCTOBER 07: United States Supreme Court (front row L-R) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan, (backrow L-R) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson pose for their official portrait at the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC. (Photo by Alex Wong/Getty Images)

At the heart of the Louisiana v. Callais issue, for voting rights and civil rights leaders, is the ability for Black voters, who make up 13% of the population and faced nearly a century of racial discrimination in voting—as well as racial violence and terror—to have equal representation under the law by being able to elect candidates of their choice. However, in Callais, the court essentially said that diluting the power of Black voters is permissible for political reasons. Any plaintiff challenging an election map under the VRA, they ruled, would have to prove that the slicing and dicing of Black or brown communities in redistricting was intentionally based on race.

Jackson, who dissented in the Louisiana case, does not call out the merits of the case in Monday’s ruling, sending the case back to the lower court, but notes the political activities around efforts to expedite its ruling to rush through a new map as problematic for the Supreme Court.

“These post-Callais developments have a strong political undercurrent. Louisiana’s hurried response to the Callais decision unfolds in the midst of an ongoing statewide election, against the backdrop of a pitched redistricting battle among state governments that appear to be acting as proxies for their favored political parties,” said Jackson. “And as always, the Court has a choice.”

 

FASCIST AMERICA 2026: A BROAD AND DEEPLY CRITICAL SURVEY AND ANALYSIS OF THE U.S. SUPREME COURT SINCE 2010. IN THE MEANTIME WE MUST ALWAYS REMEMBER THAT ESPECIALLY UNDER FASCISM "THE PAST IS PROLOGUE..."

http://panopticonreview.blogspot.com/2010/01/new-york-times-attacks-supreme-courts.html

 
FROM THE PANOPTICON REVIEW ARCHIVES

 
(Originally posted on January 24, 2010):

 
Sunday, January 24, 2010

 
The New York Times Attacks the Supreme Court's Anti-Democratic Decision to Allow Corporations Control Over American Politics

 
http://www.nytimes.com/2010/01/22/opinion/22fri1.html?em

 
All,

 
The New York Times excoriating editorial take on the disgraceful Supreme Court sellout of the American people and the political system to super wealthy corporations...

Kofi


January 22, 2010

 
EDITORIAL
The Court’s Blow to Democracy
New York Times

With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.

Congress must act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.

As a result of Thursday’s ruling, corporations have been unleashed from the longstanding ban against their spending directly on political campaigns and will be free to spend as much money as they want to elect and defeat candidates. If a member of Congress tries to stand up to a wealthy special interest, its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.

The ruling in Citizens United v. Federal Election Commission radically reverses well-established law and erodes a wall that has stood for a century between corporations and electoral politics. (The ruling also frees up labor unions to spend, though they have far less money at their disposal.)

The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations.

In 1907, as corporations reached new heights of wealth and power, Congress made its views of the relationship between corporations and campaigning clear: It banned them from contributing to candidates. At midcentury, it enacted the broader ban on spending that was repeatedly reaffirmed over the decades until it was struck down on Thursday.

This issue should never have been before the court. The justices overreached and seized on a case involving a narrower, technical question involving the broadcast of a movie that attacked Hillary Rodham Clinton during the 2008 campaign. The court elevated that case to a forum for striking down the entire ban on corporate spending and then rushed the process of hearing the case at breakneck speed. It gave lawyers a month to prepare briefs on an issue of enormous complexity, and it scheduled arguments during its vacation.

Chief Justice John Roberts Jr., no doubt aware of how sharply these actions clash with his confirmation-time vow to be judicially modest and simply “call balls and strikes,” wrote a separate opinion trying to excuse the shameless judicial overreaching.

The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate.

The majority also makes the nonsensical claim that, unlike campaign contributions, which are still prohibited, independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” If Wall Street bankers told members of Congress that they would spend millions of dollars to defeat anyone who opposed their bailout, and then did so, it would certainly look corrupt.

After the court heard the case, Senator John McCain told reporters that he was troubled by the “extreme naïveté” some of the justices showed about the role of special-interest money in Congressional lawmaking.

In dissent, Justice John Paul Stevens warned that the ruling not only threatens democracy but “will, I fear, do damage to this institution.” History is, indeed, likely to look harshly not only on the decision but the court that delivered it. The Citizens United ruling is likely to be viewed as a shameful bookend to Bush v. Gore. With one 5-to-4 decision, the court’s conservative majority stopped valid votes from being counted to ensure the election of a conservative president. Now a similar conservative majority has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections.

Congress and members of the public who care about fair elections and clean government need to mobilize right away, a cause President Obama has said he would join. Congress should repair the presidential public finance system and create another one for Congressional elections to help ordinary Americans contribute to campaigns. It should also enact a law requiring publicly traded corporations to get the approval of their shareholders before spending on political campaigns.

These would be important steps, but they would not be enough. The real solution lies in getting the court’s ruling overturned. The four dissenters made an eloquent case for why the decision was wrong on the law and dangerous. With one more vote, they could rescue democracy.


Copyright 2010 The New York Times Company

Posted by Kofi Natambu at 5:32 PM

Labels: American elections, Corporate capitalism, Money and Power, New York Times, Political corruption, The Republican 5, The Supreme Court


https://panopticonreview.blogspot.com/2010/04/ideology-and-politics-in-supreme-court.html


FROM THE PANOPTICON REVIEW ARCHIVES

(Originally posted on April 10, 2010):

 
Saturday, April 10, 2010

 
Ideology and Politics in the Supreme Court: The Imminent Danger of a More Rightwing Court

(Image: Lance Page / t r u t h o u t; Adapted: Khaz, Hayley Austin)


http://www.truthout.org/a-supreme-court-shift-right58439


All,


We had all better hope this is not the case! If so it will be an unmitigated DISASTER for us all…


Kofi


A Supreme Court Shift to the Right?
09 April 2010
by Ruth Marcus
Op-Ed
t r u t h o u t


Washington - Here is an unsettling thought for those who waited eight years to have a Democratic president appointing judges: Barack Obama could well end his first term with a more conservative Supreme Court than the one he inherited.


This is, I hasten to admit, premature speculation -- even with the not-so-surprise announcement that Justice John Paul Stevens, the anchor of the court's liberal wing, is retiring.


First, the president's only nominee so far, Justice Sonia Sotomayor, has not even finished her first term. Where she turns out to be on the ideological spectrum in comparison to the justice she replaced, David Souter, is unknown.


Second, the accuracy of this conjecture will depend hugely on who the president selects to fill the vacancy.

Finally, as the examples of Souter (named by President George H.W. Bush) and Stevens (selected by President Gerald Ford) demonstrate, predictions about a new justice's future performance can make weather forecasting look like an exact science.

Nonetheless, it's entirely possible that a more conservative court could be Obama's paradoxical legacy -- particularly if he only serves a single term. The likelihood of the court shifting to the right is greater than that of its moving leftward.


In part, this could have been predicted even before Obama took office. It reflects less about him than it does the identity of the departing justices, one liberal followed by another. The next oldest justice is Ruth Bader Ginsburg, 77. Conservatives are reaping the benefits of Bush father and son having selected justices who were relatively young. Justice Clarence Thomas was 43 when tapped, Chief Justice John Roberts was 50, and Justice Samuel Alito was 55.


It would likely only be in the case of a departure by 74-year-old Justice Antonin Scalia -- not likely to occur voluntarily during Obama's presidency -- or Justice Anthony Kennedy, 73, that the president would have an opportunity to dramatically alter the court's ideological makeup.

But there's little in Obama's record as president to suggest that he would expend enormous capital to secure the most liberal possible justice. From the point of view of liberal groups, Obama's nominees to the lower federal courts have been, overall, disappointingly moderate.

In selecting Sotomayor, Obama acted with an eye less to ideology than to ethnicity; the selection does not offer much of a clue into what the president is looking for, as a matter of constitutional interpretation, in future justices. The conservative howling about Sotomayor's alleged radicalism had as little basis in reality as do the parallel assertions about Obama.


As Tom Goldstein of ScotusBlog put it after analyzing Sotomayor's appellate record, "Our surveys of her opinions put her in essentially the same ideological position as Justice Souter." From her conduct on the bench so far, there's no reason to change that assessment.

By contrast, it's likely, although not certain, that a Stevens replacement will be more conservative than the retiring justice. If so, this would be largely in line with history. In an interview with Jeffrey Rosen for The New York Times Magazine in 2007, Stevens noted, "including myself, every judge who's been appointed to the court since Lewis Powell (chosen by Richard Nixon in 1971) has been more conservative than his or her predecessor." Stevens excepted Ginsburg, who replaced the more conservative Byron White.

In any event, Stevens' replacement is almost certain not to be as influential a player on the left as the departing justice. As the court's senior associate justice, Stevens spoke immediately after the chief justice during the court's discussion of cases; he had the power to assign opinions and some influence with swing justices such as Kennedy and, before her departure, Sandra Day O'Connor.


I'm not arguing, by the way, that Obama would go wrong by picking a Stevens successor likely to edge the court to the right. Indeed, there is a plausible argument that a justice viewed as more centrist might have more chance of bringing along conservative colleagues on a particular issue. Two of those mentioned as possible replacements, Judge Merrick Garland of the federal appeals court in the District of Columbia, and Solicitor General Elena Kagan, are viewed as more moderate than Stevens. Either would be a superb choice.


But my prediction stands: The court that convenes on the first Monday in October is apt to be more conservative than the one we have now.


Ruth Marcus' e-mail address is marcusr@washpost.com.

(c) 2010, Washington Post Writers Group

Posted by Kofi Natambu at 4:32 AM


Labels: Ideology and Politics, Justice John Paul Stevens, President Obama, Social Justice, Supreme Court nominees, The Supreme Court


BETTY DUKES: 1950-2017 

 
All,

 
Ms. Dukes was a genuine hero and outspokenly courageous worker/activist in the national labor movement who led a valiant fight against Walmart, one of the most heinous, corrupt, and thoroughly oppressive and exploitive multinational capitalist corporations in the worid. Despite the violently unjust defeat of her gender bias class action suit by the vile rightwing GANG OF FIVE in the Supreme Court her sterling ethical example, political and moral clarity, and sheer determined fortitude in the face of a fierce national hurricane of white supremacist, anti-labor, and sexist/misogynist opposition and hatred remains a fundamental template for what it will really take to truly change this deadly society and the world. Thank you Ms. Dukes for showing us all what REAL LEADERSHIP and principled mass struggle for freedom, justice, equality, and democracy is really all about. The following piece is from the Panopticon Review archives dated June 11, 2011 that covers the gender bias lawsuit and its aftermath in the Supreme Court. I dedicate its reposting to the memory of Ms. Dukes and with heartfelt condolences to her family and loved ones in their period of grief and remembrance. RIP Ms. Dukes. You and your courageous fight will never be forgotten...

As Always,
 

"Dare to Struggle, Dare To Win"

Kofi


https://panopticonreview.blogspot.com/2011/06/us-supreme-court-rules-in-favor-of.html
 

FROM THE PANOPTICON REVIEW ARCHIVES

 
(Originally posted on June 21, 2011):

 
Tuesday, June 21, 2011

 
U.S. Supreme Court Rules in Favor of Gender, Racial, and Labor Discrimination in Landmark Class Action Case Against Wal-Mart

 

Larry Downing/Reuters. Betty Dukes, a plaintiff in the case against Wal-Mart, at the Supreme Court on March 29.

http://www.nytimes.com/2011/06/21/business/21bizcourt.html?_r=1&nl=todaysheadlines&emc=tha2


All,


This vicious and heinously sexist, racist, and anti-labor decision handed down by the most egregiously corporate and reactionary rightwing Supreme Court of the past 100 years is yet another howling public example of just how quickly and brutally this country is actually moving toward fascism. From "Bush v. Gore" which stole the presidential election for George W. Bush in 2000 to the brazenly pro-corporate and thoroughly anti-democratic vote in the infamous "Citizens United" case of 2009 (yet another ideologically driven 5-4 vote for the Scalia-Thomas-Alito-Roberts wing of openly rightwing legal gangsters!), this decision means that there is now absolutely NO LEGAL RECOURSE WHATSOEVER left for anyone from the poor, working, and middle class (and this goes especially for all people of color and women generally) to receive even a modicum of real justice against blatant sexual, racial, and labor discrimination and exploitation in the U. S. legal system. NONE! Revolution, anyone?...


Kofi


Justices Rule for Wal-Mart in Class-Action Bias CaseBy ADAM LIPTAK
June 20, 2011
New York Times

WASHINGTON — The Supreme Court on Monday threw out an enormous employment discrimination class-action suit against Wal-Mart that had sought billions of dollars on behalf of as many as 1.5 million female workers.


A Death Blow to Class Action?


By siding with Wal-Mart, the Supreme Court has signaled that it wants job bias disputes handled in the workplace, not the courts.


The suit claimed that Wal-Mart’s policies and practices had led to countless discriminatory decisions over pay and promotions.


The court divided 5 to 4 along ideological lines on the basic question in the case — whether the suit satisfied a requirement of the class-action rules that “there are questions of law or fact common to the class” of female employees. The court’s five more conservative justices said no, shutting down the suit and limiting the ability of other plaintiffs to band together in large class actions.

The court was unanimous, however, in saying that the plaintiffs’ lawyers had improperly sued under a part of the class-action rules that was not primarily concerned with monetary claims.


Business groups welcomed the decision, and labor and consumer groups strongly criticized it. But all agreed it was momentous.

“This is without a doubt the most important class-action case in more than a decade,” said Robin S. Conrad, a lawyer with the litigation unit of the United States Chamber of Commerce, the business advocacy group.

The court did not decide whether Wal-Mart had, in fact, discriminated against the women, only that they could not proceed as a class. The court’s decision on that issue will almost certainly affect all sorts of other class-action suits, including ones brought by investors and consumers, because it tightened the definition of what constituted a common issue for a class action and said that judges must often consider the merits of plaintiffs’ claims in deciding whether they may proceed as a class.

“You will have people invoking the decision in lots of different cases,” said Brian T. Fitzpatrick, a law professor at Vanderbilt University specializing in class-action law. “The Supreme Court has said that it’s O.K. to look at the merits of the lawsuit to decide whether to allow it to go forward at the earliest possible moment.”

Justice Antonin Scalia, writing for the majority, said the women suing Wal-Mart could not show that they would receive “a common answer to the crucial question, why was I disfavored?” He noted that the company, the nation’s largest private employer, operated some 3,400 stores, had an expressed policy forbidding discrimination and granted local managers substantial discretion.

“On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action,” Justice Scalia wrote. “It is a policy against having uniform employment practices.”

The case involved “literally millions of employment decisions,” Justice Scalia wrote, and the plaintiffs were required to point to “some glue holding the alleged reasons for all those decisions together.”

The plaintiffs sought to make that case with testimony from William T. Bielby, a sociologist specializing in social framework analysis.

Professor Bielby told a lower court that he had collected general “scientific evidence about gender bias, stereotypes and the structure and dynamics of gender inequality in organizations.” He said he also had reviewed extensive litigation materials gathered by the lawyers in the case.

He concluded that Wal-Mart’s culture might foster pay and other disparities through a centralized personnel policy that allowed for subjective decisions by local managers. Such practices, he argued, allowed stereotypes to sway personnel choices, making “decisions about compensation and promotion vulnerable to gender bias.”

Justice Scalia rejected the testimony, which he called crucial to the plaintiffs’ case.

“It is worlds away,” he wrote, “from ‘significant proof’ that Wal-Mart ‘operated under a general policy of discrimination.’ ”


Nor was Justice Scalia impressed with the anecdotal and statistical evidence offered.

One of the plaintiffs named in the suit, Christine Kwapnoski, had testified, for instance, that a male manager yelled at female employees but not male ones, and had instructed her to “doll up.” Justice Scalia said that scattered anecdotes — “about 1 for every 12,500 class members,” he wrote — were insignificant.

He added that statistics showing pay and promotion gaps between male and female workers were insufficient to show common issues among the plaintiffs, because discrimination was not the only possible explanation. “Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics,” Justice Scalia wrote. “And almost all of them will claim to have been applying some sex-neutral, performance-based criteria — whose nature and effects will differ from store to store.” Joseph M. Sellers, a lawyer for the plaintiffs, said the majority had “reversed about 40 years of jurisprudence that has in the past allowed for companywide cases to be brought challenging common practices that have a disparate effect, that have adversely affected women and other workers.”

A lawyer for Wal-Mart, Theodore J. Boutrous Jr., said the decision was “an extremely important victory not just for Wal-Mart but for all companies who do business in the United States, large and small, and their employees, too.”

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined Justice Scalia’s majority opinion on the broader point. But the court unanimously rejected the plaintiffs’ effort to proceed under a part of the class-action rules concerned mainly with court declarations and orders as opposed to money, one that did not require notice to the class or provide the ability to opt out of it.

Justice Ruth Bader Ginsburg, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, dissented in part. Justice Ginsburg said the court had gone too far in its broader ruling in the case, Wal-Mart Stores v. Dukes, No. 10-277.

She would have allowed the plaintiffs to try to make their case under another part of the class-action rules. “The court, however, disqualifies the class at the starting gate” by ruling that there are no common issues, she wrote.

She added that both the statistics presented by the plaintiffs and their individual accounts were evidence that “gender bias suffused Wal-Mart’s corporate culture.” She said, for instance, that women filled 70 percent of the hourly jobs but only 33 percent of management positions and that “senior management often refer to female associates as ‘little Janie Qs.’ ”

“The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects,” she wrote. “Managers, like all humankind, may be prey to biases of which they are unaware.”


Stephanie Clifford contributed reporting.


Posted by Kofi Natambu at 4:48 AM

Labels: Class warfare, Gender discrimination, Labor discrimination, Racial discrimination, The Corporate state, The Republican 5, The Supreme Court, Wal-Mart


https://en.wikipedia.org/wiki/Wal-Mart_Stores,_Inc._v._Dukes 

 
Wal-Mart Stores, Inc. v. Dukes

Wal-Mart v. Dukes, 564 U.S. 338 (2011), was a United States Supreme Court case in which the Court ruled that a group of roughly 1.5 million women could not be certified as a valid class of plaintiffs in a class action for employment discrimination against Walmart. Lead plaintiff Betty Dukes, a Walmart employee, and others alleged gender discrimination in pay and promotion policies and practices in Walmart stores.[1]

The Court agreed to hear argument on whether Rule 23(b)(2) of the Federal Rules of Civil Procedure which provides for class actions if the defendant's actions make injunctive relief appropriate, can be used to file a class action that demands monetary damages. The Court also asked the parties to argue whether the class meets the traditional requirements of numerosity, commonality, typicality, and adequacy of representation.[2]

The Supreme Court ruled unanimously that the class should not be certified in its current form but was only 5–4 on why so and whether the class could continue in a different form.
Background

In 2000, Betty Dukes, a 54-year-old Walmart worker in Pittsburg, California, claimed sex discrimination. Despite six years of work and positive performance reviews, she was denied the training she needed to advance to a higher salaried position. Walmart argued that Dukes clashed with a female Walmart supervisor and was disciplined for admittedly returning late from lunch breaks.[3]

In June 2001, the lawsuit began in a federal district court in San Francisco. The plaintiffs sought to represent 1.6 million women, including women who were currently working or who had previously worked in a Walmart store since December 26, 1998.[4]

Supreme Court decision

On December 6, 2009, the Supreme Court agreed to hear Walmart's appeal as Wal-Mart v. Dukes.[14] Oral argument for the case occurred on March 29, 2011.[15][16]

On June 20, 2011, the Supreme Court ruled in Walmart's favor by saying the plaintiffs did not have enough in common to constitute a class.[17][18] The Court ruled unanimously that because of the variability of plaintiffs' circumstances, the class action could not proceed as comprised.

Justice Scalia's majority opinion held that Rule 23(a)(2)'s requirement of commonality means that there must be a common question of law and fact, such that "determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke". Thus, the Court ruled 5–4 that the case could not proceed as a class action.[19]
Legacy

The majority opinion was heavily criticized as unprincipled because its analysis of Rule 23(a)(2) "cannot be squared with the text, structure, or history" of that rule.[20] By resorting to the analysis in a single law professor's law review article to interpret Rule 23(a)(2), Justice Scalia's opinion effectively rewrote Rule 23(a)(2) without admitting what it was actually doing, and without going through the conventional administrative process for rewriting court rules (that is, through the Judicial Conference of the United States).[20] Justice Ginsburg's dissent pointed out that the majority opinion was improperly importing a Rule 23(b)(3) issue into the Rule 23(a)(2) analysis, thereby making commonality much harder to satisfy.

Critics of the opinion allege that the decision makes it incredibly difficult to certify a class without a prohibitive amount of work on the part of plaintiff attorneys. The requirement to look through the class to the merits requires an immense amount of discovery, which was not previously required.

Scalia's formulation made the commonality requirement for class certification very difficult to satisfy, especially in the employment context.

It can still be met by an employee who can point to a standard written policy where the merits issues can be easily proven or disproven "in one stroke", such as a formula for calculating overtime pay that is always too low and thus always illegal as applied to all employees. If the plaintiff can easily prove the fact and law of that issue in one stroke (e.g., the facts that the policy actually exists and its specific terms, and the relevant law governing how overtime pay should be calculated), they may proceed on behalf of a class.

In contrast, Scalia's test for commonality is virtually impossible to meet in employment discrimination cases.[21] In the 21st century, it is extremely rare for someone to rise to a chief executive officer position in a large organization who is foolish enough to promulgate a standard written policy expressly directing adverse action against all persons who share a protected attribute. Thus, in large organizations, there will usually be too many decisionmakers and too much variability across their pay and promotion decisions to prove or disprove a companywide pattern of discrimination in one stroke.[21] Conversely, in small organizations, it may be possible to show in one stroke that a single decisionmaker is or is not responsible for widespread discrimination, but then the proposed class may be too small to meet Rule 23's requirement of numerosity.[21]
 

See also:

Criticism of Walmart
Gender equality
List of class action lawsuits
List of gender equality lawsuits
Mauldin v. Wal-Mart Stores, Inc.


https://panopticonreview.blogspot.com/2023/12/the-fundamental-crisis-and-foundational_20.html

 
FROM THE PANOPTICON REVIEW ARCHIVES
 

(Originally posted on December 20, 2023):

 
Wednesday, December 20, 2023

 
The Fundamental Crisis and Foundational Contradiction Facing the United States During the Upcoming Presidential Election Year of 2024: Fascism guided, informed, and enabled by the Doctrines and Practices of White Supremacy and Global Capitalism--PART 5


[The following commentary and article was originally posted on November 9, 2016]


All,


The looming disaster of Trump's deadly new regime in all of its oppressive and totalitarian arrogance is sure to make its ominous agenda known and manifest in not only his ideological domination of the Supreme Court but in literally hundreds of federal court judicial appointments at both the federal district court and appellate court levels. The number of nominations currently awaiting Senate action is 56. There is currently one vacancy on the Supreme Court of the United States, 13 vacancies on the United States Courts of Appeals, 80 vacancies on the United States district courts, two vacancies on the United States Court of International Trade and 7 announced federal judicial vacancies before the end of Obama's second term (which officially ends on January 20, 2017).


To say this new legal and political opportunity will give Trump and his many protofascist rightwing political and judicial supporters and colleagues enormous power to immediately determine the very course and direction of American political, economic, and judicial power in the national court system for decades to come is a massive understatement. In a word as far as matters of social and economic justice at a national level are concerned we are FUCKED. In short something very vile, negligent, and cruel is coming our way and very soon.

Furthermore we as a society generally and especially as oppressed national minorities, women, and various liberal, progressive, and radically leftist tendencies alike are in for a long period of neglect, indifference, and assault by our legal and judicial institutions. This means among other things that corporate control and domination of our economy and culture will not only increase but become an even greater force for comprehensive exploitation and calculated destruction of our labor, land, and natural resources. As such massive income inequality and structural/institutional levels of discrimination and exploitation on the basis of race, class, and gender will increase exponentially across the country.

It can be safely predicted that nothing good as far as the institutional "rule of law" is concerned will come from Trump's new administration for poor, working, and middle class people and the undeniable proof will be in precisely who Trump appoints to the federal bench at both the Supreme Court and throughout the rest of the country. As usual, stay tuned...


Kofi


https://www.businessinsider.com/president-elect-donald-trum…

Home
Politics

Here's president-elect Donald Trump's list of potential Supreme Court nominees

by Jeremy Berke
November 9, 2016
Business Insider

PHOTO: Donald Trump pictured at the third presidential debate at the University of Nevada Las Vegas. REUTERS/Rick Wilking


Here's president-elect Donald Trump's list of potential Supreme Court nomineesDonald Trump's list of Supreme Court nominees.

President-elect Donald Trump will likely have a huge role in shaping the composition of the Supreme Court for the next few decades. 

After Senate Republicans refused to hold a hearing for Merrick Garland — President Obama's choice to replace conservative Justice Antonin Scalia — Trump will likely have the opportunity to fill at least one seat on the country's highest court. 

Two liberal justices on the court, 78-year-old Stephen Breyer and 83-year-old Ruth Bader Ginsburg are also expected to retire soon.

Trump has expressed support for highly-conservative justices in the past. He's said he wants to overturn Roe v. Wade, the landmark case giving women the right to abortions, and said that the Court needs to "uphold the Second Amendment."

Trump's list of nominees contains some unusual choices, such as Utah Sen. Mike Lee. A spokesman for Lee told Politico that "Sen. Lee already has the job he wants which is why he is campaigning to represent the great people of Utah again this year."

For the most part, all of Trump's potential nominees have a history of supporting conservative issues. 

Here are Donald Trump's potential Supreme Court nominees:

1. Keith Blackwell

2. Charles Canady

3. Steven Colloton

4. Allison Eid

5. Neil Gorsuch

6. Raymond Gruender

7. Thomas Hardiman

8. Raymond Kethledge

9. Joan Larsen

10. Mike Lee

11. Thomas Lee

12. Edward Mansfield

13. Federico Moreno

14. William Pryor

15. Margaret A. Ryan

16. Amul Thapar

17. Timothy Tymkovich

18. David Stras

19. Diane Sykes

20. Don Willett

21. Robert Young

 

http://www.truth-out.org/opinion/item/36987-white-supremacy-and-sanctioned-violence-in-the-age-of-donald-trump

ON THE HEINOUS DOCTRINE AND PRACTICE OF WHITE SUPREMACY IN THE UNITED STATES AND ITS INTEGRAL CONNECTION TO THE FERVENT RISE OF FASCIST IDEOLOGY AND BEHAVIOR IN BOTH AMERICAN SOCIETY AND THROUGHOUT THE WORLD TODAY:

White Supremacy and Sanctioned Violence in the Age of Donald Trump
27 July 2016 
by Henry A. Giroux 
Truthout | Op-Ed 

PHOTO: Donald Trump accepts the Republican nomination for president on the final night of the Republican National Convention, at the Quicken Loans Arena in Cleveland, July 21, 2016. (Photo: Eric Thayer / The New York Times)

Peter Thiel, the silicon billionaire and one of the six ultra-rich financial elite to speak at the Republican National Convention once wrote that he did not "believe that freedom and democracy were compatible." This blatant anti-democratic mindset has emerged once again, without apology, as a major organizing principle of the Republican Party under Donald Trump. In addition to expressing a hatred of Muslims, Mexicans, women, journalists, dissidents, and others whom he views as outside the pale of what constitutes a true American, Trump appears to harbor a core disdain for democracy, bringing back Theodor Adorno's warning that "the true danger [of fascism] lay in the traces of the fascist mentality within the democratic political system" (a warning quoted in Prismatic Thought). What has become clear is that the current political crisis represents a return to ideologies, values and policies based upon a poisonous mix of white supremacy and ultra-nationalism, opening up a politics that "could lead back to political totalitarianism."

Throughout the 2016 Republican National Convention the hateful discourse of red-faced anger and unbridled fear-mongering added up to more than an appeal to protect America and make it safe again. Such weakly coded invocations also echoed the days of Jim Crow, the undoing of civil rights, forced expulsions and forms of state terrorism sanctioned in the strident calls for safety and law-and-order. Commenting on Trump's speech, columnist Eugene Robinson argued that his talk added up to what few journalists were willing to acknowledge -- "a notorious white supremacist account." What is shocking is the refusal in many mainstream media circles to examine the role that white supremacy has played in creating the conditions for Trump to emerge as the head of the Republican Party. This structured silence is completely at odds with Trump's longstanding legacy of discrimination, including his recent and relentless derogatory remarks concerning President Obama, his race-based attacks on US District Judge Gonzalo Curiel (who is trying a case against Trump University), his denunciation of Muslims as terrorists and his attempt to paint Mexican immigrants as criminals, drug dealers and rapists.

For more original Truthout election coverage, check out our election section, "Beyond the Sound Bites: Election 2016."

Neo-Fascism in the US

The visibility of such racist accounts and the deep investments in the ongoing mobilization of fear by political extremists in the United States surely has its roots in a number of factors, including dire economic conditions that have left millions suffering and proliferated zones of social abandonment. These economic conditions have resulted in an exponential increase in the individuals and groups condemned to live under machineries of inscription, punishment and disposability. The current mobilization of fear also has its roots, rarely mentioned by those critical of Trump, in a legacy of white supremacy that is used to divert anger over dire economic and political conditions into the diversionary cesspool of racial hatred. Racial amnesia was one consequence of the heralding of what David Theo Goldberg has called in his book Are We All Postracial Yet?, a "postracial" era in American history after the first Black president was elected to office in 2008. This collective racial amnesia (coded as postracialism) was momentarily disrupted by the execution of Troy Davis, the shootings of Jordan Davis, Trayvon Martin and others, and the rise of the Black Lives Matter movement. Yet, even today, in spite of the cell phone videos that have made visible an endless array of Black men being killed by police, much of the American public (and particularly, the white American public) seems immune to communications of the reach, depth and scope of institutional racism in America. 

 

As Nathanial Rich observes:

Today, like sixty years ago, much of the public rhetoric about race is devoted to explaining to an incurious white public, in rudimentary terms, the contours of institutional racism. It must be spelled out, as if for the first time, that police killings of unarmed black children, indifference to providing clean drinking water to a majority-black city, or efforts to curtail the voting rights of minority citizens are not freak incidents; but outbreaks of a chronic national disease. Nebulous, bureaucratic terms like "white privilege" have been substituted for "white supremacy," or "micro-aggressions" for "casual racism."

Across the globe, fascism and white supremacy in their diverse forms are on the rise. In Greece, France, Poland, Austria and Germany, among other nations, right-wing extremists have used the hateful discourse of racism, xenophobia and white nationalism to demonize immigrants and undermine democratic modes of rule and policies. As Chris Hedges observes, much of the right-wing, racist rhetoric coming out of these countries mimics what Trump and his followers are saying in the United States.

One consequence is that the public spheres that produce a critically engaged citizenry and make a democracy possible are under siege and in rapid retreat. Economic stagnation, massive inequality, the rise of religious fundamentalism and growing forms of ultra-nationalism now aim to put democratic nations to rest. Echoes of the right-wing movements in Europe have come home with a vengeance. Demagogues wrapped in xenophobia, white supremacy and the false appeal to a lost past echo a brutally familiar fascism, with slogans similar to Donald Trump's call to "Make America Great Again" and "Make America Safe Again." These are barely coded messages that call for forms of racial and social cleansing. They are on the march, spewing hatred, embracing forms of anti-semitism and white supremacy, and showing a deep-seated disdain for any form of justice on the side of democracy. As Peter Foster points out in The Telegraph, "The toxic combination of the most prolonged period of economic stagnation and the worst refugee crisis since the end of the Second World War has seen the far-Right surging across the continent, from Athens to Amsterdam and many points in between."

To read more articles by Henry A. Giroux and other authors in the Public Intellectual Project, click here.

State-manufactured lawlessness has become normalized and extends from the ongoing and often brutalizing and murderous police violence against Black people and other vulnerable groups to a criminogenic market-based system run by a financial elite that strips everyone but the upper 1% of a future, not only by stealing their possessions but also by condemning them to a life in which the only available option is to fall back on one's individual resources in order to barely survive. In addition, as Kathy Kelly points out, at the national level, lawlessness now drives a militarized foreign policy intent on assassinating alleged enemies rather than using traditional forms of interrogation, arrest and conviction. The killing of people abroad based on race is paralleled by (and connected with) the killing of Black people at home. Kelly correctly notes that the whole world has become a battlefield driven by racial profiling, where lethal violence replaces the protocols of serve and protect.

Fear is the reigning ideology and war its operative mode of action, pitting different groups against each other, shutting down the possibilities of shared responsibilities, and legitimating the growth of a paramilitary police force that kills Black people with impunity. State-manufactured fear offers up new forms of domestic terrorism embodied in the rise of a surveillance state while providing a powerful platform for militarizing many aspects of society. One consequence is that, as Charles Derber argues, America has become a warrior society whose "culture and institutions... program civilians for violence at home as well as abroad." And, as Zygmunt Bauman argues in his book Liquid Fear, in a society saturated in violence and hate, "human relations are a source of anxiety" and everyone is viewed with mistrust. Compassion gives way to suspicion and a celebration of fear and revulsion accorded to those others who allegedly have the potential to become monsters, criminals, or even worse, murderous terrorists. Under such circumstance, the bonds of trust dissolve, while hating the other becomes normalized and lawlessness is elevated to a matter of commonsense.


Politics is now a form of warfare creating and producing an expanding geography of combat zones that hold entire cities, such as Ferguson, Missouri, hostage to forms of extortion, violence lock downs and domestic terrorism -- something I have demonstrated in detail in my book America at War with Itself. These are cities where most of those targeted are Black. Within these zones of racial violence, Black people are often terrified by the presence of the police and subject to endless forms of domestic terrorism. Hannah Arendt once wrote that terror was the essence of totalitarianism. She was right and we are witnessing the dystopian visions of the new authoritarians who now trade in terror, fear, hatred, demonization, violence and racism. Trump and his neo-Nazi bulldogs are no longer on the fringe of political life and they have no interests in instilling values that will make America great. On the contrary, they are deeply concerned with creating expanding constellations of force and fear, while inculcating convictions that will destroy the ability to form critical capacities and modes of civic courage that offer a glimmer of resistance and justice.

Trump and the Culture of Cruelty

Nicholas Confessore rightly argues that Trump's "anti-other language" and denigration of Mexican immigrants as "criminal rapists, murderers and drug dealers" has "electrified the world of white nationalists," who up until the Trump campaign had been relegated to the fringe of American politics. No longer. All manner of white nationalist groups, news sites (The Daily Stormer) and individuals, such as Jared Tayler (a self-described "race realist") and David Duke (a racist and anti-Semitic Louisiana lawmaker and talk show host) have embraced Trump as a presidential candidate. And in a less-than-subtle way, Trump has embraced them. He has repeatedly tweeted messages that first appeared on racist or ultra-nationalist neo-Nazi Twitter accounts and when asked about such tweets has refused to disavow them directly.

In short, this emerging American neo-fascism in its various forms is largely about social and racial cleansing and its end point is the construction of prisons, detention centers, enclosures, walls, and all the other varieties of murderous apparatus that accompany the discourse of national greatness and racial purity. Americans have lived through 40 years of the dismantling of the welfare state, the elimination of democratic public spheres, such as schools and libraries, and the attack on public goods and social provisions. In their place, we have the rise of the punishing state with its support for a range of criminogenic institutions, extending from banks and hedge funds to state governments and militarized police departments that depend on extortion to meet their budgets.

Where are the institutions that do not support a rabid individualism, a culture of cruelty and a society based on social combat -- that refuse to militarize social problems and reject the white supremacist laws and practices spreading throughout the United States? What happens when a society is shaped by a poisonous neoliberalism that separates economic and individual economic actions form social costs, when privatization becomes the only sanctioned orbit for agency, when values are entirely reduced to exchange values?

How do we talk about the way in which language is transformed into a tool of violence, as recently happened at the Republican National Convention? Moreover, how does language act in the service of violence -- less through an overt discourse of hate and bigotry than through its complicity with all manner of symbolic and real violence? What happens to a society when moral witnessing is hollowed out by a shameless entertainment industry that is willing to produce and distribute spectacles of extreme violence on a massive scale? What happens to a society when music is used as a method of torture (as it was at Guantanamo) and when a fascist politics of torture and disappearance are endorsed by a presidential candidate and many of his supporters? Instead of addressing these questions -- as well as the state-sanctioned torture and lynching that form the backdrop for this violence -- we have been hearing a lot of talk about violence waged against police. This is not to suggest that the recent isolated acts of violence against police are justified -- of course, they are not -- but the real question is why we don't see much more of such violence, given how rampant police violence has long been in the service of white supremacy. As Ta-Nehisi Coates observes, the killing of police officers cannot be addressed outside the historical legacy of discrimination, harassment, and violence against Black people. He writes:

When the law shoots down 12-year-old children, or beats down old women on traffic islands, or chokes people to death over cigarettes; when the law shoots people over compact discs, traffic stops, drivers' licenses, loud conversation, or car trouble; when the law auctions off its monopoly on lethal violence to bemused civilians, when these civilians then kill, and when their victims are mocked in their death throes; when people stand up to defend police as officers of the state, and when these defenders are killed by these very same officers; when much of this is recorded, uploaded, live-streamed, tweeted, and broadcast; and when government seems powerless, or unwilling, to stop any of it, then it ceases, in the eyes of citizens, to be any sort of respectable law at all. It simply becomes "force."

The call for even more "law and order" feeds even more police violence rather than addressing how it can be eliminated. What is often forgotten by such calls is that, as Gayatri Chakravorty Spivak and Brad Evans point out, "When human beings are valued as less than human, violence begins to emerge as the only response." Under such circumstances, as Patrick Healy and Jonathan Martin argue, the call for law and order is in actuality a call to sanction even more state violence while telling white people that their country is spiralling out of control and that they yearn for a leader who will take aggressive, even extreme, actions to protect them. But the consequences of hate are marked or covered over with well-intentioned but misguided calls for love and empathy. These are empty calls when they do not address the root causes of violence and when they ignore a ruthless climate and culture of cruelty that calls poor people moochers; a culture that's increasingly militarized, that increasingly criminalizes and marginalizes people and social problems, and where a discourse of hate is normalized by the Republican Party and covered up by the Democratic Party.

Differences Between Hillary Clinton and Donald Trump

What cannot be ignored is that Hilary Clinton has supported a war machine that has resulted in the death of millions, while also supporting a neoliberal economy that has produced massive amounts of suffering and created a mass incarceration state. Yet, all of that is forgotten as the mainstream press focuses on stories about Clinton's emails and the details of her electoral run for the presidency. It is crucial to note that Clinton hides her crimes in the discourse of freedom and appeals to democracy while Trump overtly disdains such a discourse. In the end, state and domestic violence saturate American society and the only time this fact gets noticed is when the beatings and murders of Black men are caught on camera and spread through social media.

Where are the mainstream public outcries for the millions of Black and Brown people incarcerated in America's carceral state? When the mainstream media can write and air allegedly objective stories about a fascist candidate who delights white nationalists and neo-Nazis, without highlighting that he advocates policies that are racist and constitute war crimes, it makes visible how America has forgotten what it should be ashamed of: the fact that we've built a society in which collective morality and the ethical imagination no longer matter. Comparisons to the 1930s matter but what counts even more is that they have been forgotten or are held in disdain. Much of the American public appears to have forgotten that totalitarian and white supremacist societies are too often legitimated by a supplicant mainstream media, cowardly politicians, right-wing and liberal pundits, academics and other cultural workers who either overlook or support the hateful bigotry of demagogues, such as Trump. What is also forgotten by many is the racist legacy of policies implemented by the Democratic Party that have resulted in a punitive culture of criminalization, incarceration and shooting of untold numbers of Black people.

Rather than engage in the masochistic practice of supporting Trump's nativism, ignorance and bigotry, and his warlike fantasies of what it will take to make America great again, white workers who have been driven to despair by the ravaging policies of the financial elite and their shameless political and corporate allies should be in the streets protesting -- not only against what is called establishment politics, but also the rise of an unvarnished neo-Nazi demagogue.


Evidence of such complicity comes in many forms, some of which are wrapped in the discourse of a supine liberalism that bows down in the face of an authoritarianism largely driven by the ethos of white supremacy. One example can be found in an article by Sam Tanenhaus in The New York Times: "How Trump can save the G.O.P." This stuff is hard to make up. In the article, Tanenhaus compares Trump to former presidents Eisenhower and Lyndon Johnson and praises him for the pragmatism of some of his economic policies -- as if the spirit behind Trump's policies had any relationship to the spirit that animated Eisenhower's resistance to the military-industrial complex or to Johnson's deep concern for eliminating poverty and dismantling racism in American society. Does it matter to Tanenhous that Trump is a bigot and potential war who wants to expel 11 million Mexicans, hates Muslims and speaks glowingly about instituting torture as president of the United States? Does it matter that Trump supports violence with a wink of the eye and is unapologetic about his huge following of neo-Nazis who are enthusiastic about waging a war against Black and Brown people? How is it possible to forget that, overall, Trump is a demagogue, misogynist, racist and bigot who is unequivocally dangerous to the promises and ideals of a democracy? Apparently, it is possible. Yes, the fascists and Nazis were also efficient, particularly in the end when it came to building a war machine and committing acts of genocide. So much for pragmatism without a conscience.

Trump is a real danger to the species, the country and the world in general. His views on war and climate change -- along with the promise of violence against his enemies and his unapologetic racism, bigotry and hatred of constitutional rights -- pose some of the greatest dangers to democracy and freedom the US has ever faced.

As Adam Gopnik says in an excellent article in The New Yorker, democracies do not simply commit suicide, they are killed by murderers, by people like Trump. Most expressions of support for Trump vastly underestimate the immediate danger Trump poses to the world and minorities of class, race and ethnicity. In contrast, while Hillary Clinton is a warmonger, a cheerleader for neoliberalism and a high-ranking member of the Democratic Party establishment, she is not threatening to take an immediate set of actions that would throw people of color, immigrants and working-class people under the bus. Instead, if she wins the election, she should be viewed as part of a corrupt financial and political system that should be overthrown. While posing danger on a number of economic, political and foreign fronts, Clinton would also expose by her actions and policies the mythological nature of the idea that democracy and capitalism are the same thing. Hopefully, all those young people who followed the dead-end of a Bernie Sanders movement -- and the false suggestion that a political revolution can be achieved by reforming the Democratic Party -- would seize on this contradiction. Sanders revitalized the discourse about inequality, injustice and the need to break down the financial monopolies, but he failed in choosing a political avenue in which such real and systemic change can come about.

Fighting for a Democratic Future

We live in a time in which people are diverted into a politics that celebrates saviors, denigrates democratic relations of power and policy, and provides a mode of escape in which heartfelt trauma and pain are used to mobilize people not into democratic movements but into venting their anger by blaming others who are equally oppressed. This signals a politics that kills both empathy and the imagination, a politics that uses pain to inflict further pain on others. Atomization on a global scale is a new form of invisible violence because it shackles people to their own experiences, cutting them off from a shared awareness of the larger systemic forces that shape their lives. Anger, indignation and misery need to take a detour through the ethical, political and social models of analysis that connect individual issues to larger social problems. Only then can we resist the transformation of grievances into a Trump-like version of American fascism.

Americans need to continue to develop broad-based movements that reject the established political parties and rethink the social formations necessary to bring about a radical democracy. We see this in the Black Lives Matter movement as well as in a range of other movements that are resisting corporate money in politics, the widespread destruction of the environment, nuclear war and the mass incarceration state. With hope, these important social movements will continue to break new ground in experimenting with new ways to come together and form broad-based coalitions between fragmented subgroups.

In the end, it's vital to foster anti-fascist, pro-radical democracy movements that understand short-term and long-term strategies. Short-term strategies include participating in an electoral process to make sure a fascist or religious fundamentalist does not control a school board or gain leadership roles regarding public governance. Such practices do not represent a sellout but a strategic effort to make immediate progressive gains on the way to tearing down the entire system. Strategies built on the divide of being in or out of the system are too simplistic. Progressives must forge polices that do both as part of a larger movement for creating a radical democracy. Such actions are not the same as giving into a capitalist world view, especially when the long-term plan is to overthrow such a system. There seems to be a certain kind of theoretical infantilism that dominates some segments of the left on this issue, a form of political purity stuck in an either/or mind set. Such ideological fundamentalism (which might assert, for example, that those who vote are "giving in" or "selling out") is not helpful for successful short-term planning or for long-term strategies for developing the institutions, cultural apparatuses and social movements necessary for radical change in the US and elsewhere.

If we are to fight for a democratic future that matters, progressives and the left need to ask how we would go forward if the looming authoritarian nightmare succeeds in descending upon the United States. What can we learn about the costs of allowing our society to become lawless in its modes of governance and to lose its historical understanding of the legacy of slavery, lynching and bigotry that have given rise to mass incarceration and the punishing state? What does it mean when money rules and corrupts politics, disavows economic actions from social costs, and wages war against public trust, values and goods? These are just some of the questions that need to be addressed in order to break free from a neoliberal system that spells the death-knell for democracy. All societies contain new beginnings -- we need desperately to find one on the side of justice and democracy.

The US is in a new historical moment in which the old is dying and the new is waiting to emerge. Such periods are as hopeful as they are dangerous. At the same time, there are young people and others intent on turning despair into hope, struggling to reclaim the radical imagination, and working to build a broad-based collective struggle for real symbolic and structural change in the pursuit of political and economic justice. We need to accelerate such movements before it is too late.

https://panopticonreview.blogspot.com/2024/02/the-fix-is-in-brilliant-lawyer-activist.html
 

FROM THE PANOPTICON REVIEW ARCHIVES 

(Originally posted on February 29, 2024):

Thursday, February 29, 2024

THE FIX IS IN: Brilliant Lawyer, Activist, Critic, Public Intellectual, and Fearless Advocate For Justice Elie Mystal On Exactly How and Why the Truly Heinous and Criminally Rightwing Supreme Court is 100% In The Bag For the Fascist MAGA GOP Leader and Former President Donald J. Trump

DEFEAT FASCISM BEFORE FASCISM DEFEATS YOU

https://www.msnbc.com/the-beat-with-ari/watch/n-ari-mystal-240228-205139013789
The Beat with Ari

 
SCOTUS under fire for ‘trying to make Trump win’

The Supreme Court agreed to decide whether former President Donald Trump can claim presidential immunity over criminal election interference charges. MSNBC’s Ari Melber is joined by former RNC Chair Michael Steele and The Nation correspondent Elie Mystal, who says SCOTUS is “trying to make Trump win.”

February 28, 2024

https://www.youtube.com/watch?v=He0IU4-lo40


The Supreme Court agreed to decide whether former President Donald Trump can claim presidential immunity over criminal election interference charges. MSNBC’s Ari Melber is joined by former RNC Chair Michael Steele and The Nation correspondent Elie Mystal, who says SCOTUS is “trying to make Trump win.”

https://podcasts.apple.com/us/podcast/trump-coup-trial-delayed-as-supreme-court-agrees-to/id1314172351?i=1000647482638 

 
Trump coup trial delayed as Supreme Court agrees to hear ‘presidential immunity’ case  

 

The ReidOut with Joy Reid
MSNBC
February 28, 2024

Politics

Joy Reid leads this episode of The ReidOut on MSNBC with breaking news from the Supreme Court. The 6-3 conservative majority has decided to hear the case of Trump vs. the United States on whether Donald Trump can claim presidential immunity over his criminal election interference charges. Plus, Mitch McConnell is stepping down as the Senate Republican leader in November. “But the fact remains--no individual has done more damage to the Senate than Mitch McConnell,” Joy says. Joy gives her analysis of what she calls McConnell’s "shameful legacy." All this and more in this edition of The ReidOut on MSNBC.

Posted by Kofi Natambu at 1:49 AM

Labels: 2024 Presidential election, Ari Melber, Elie Mystal, GOP. MAGA, Joy Reid, Michael Steele, MSNBC,Rightwing Judges, The Beat, The Reidout, The Supreme Court

https://panopticonreview.blogspot.com/2025/02/leading-journalist-activist-attorney.html

 
FROM THE PANOPTICON REVIEW ARCHIVES

(Originally posted on February 12, 2025):

Wednesday, February 12, 2025

Leading Journalist, Activist, Attorney, Social Critic, Legal Theorist, Public Intellectual, and Author Elie Mystal On The Clear and Present Danger of Trump Remaking and Expanding the Fascist Authority and Power of the Supreme Court and the Absolute Terror That His Utterly Corrupt, Tyrannical, and Oppressive Political, Legal, and Ideological Regime Is Certain To Inflict On This Society and the World If We Don't Stop This Looming Catastrophe

https://www.thenation.com/article/politics/trump-supreme-court-appointments/

How Trump Could Remake the Supreme Court for a Generation

Donald Trump is poised to become the first president since FDR to have appointed the majority of high-court justices. His potential picks are terrifying

by Elie Mystal
February 11, 2025
The Nation

Illustration by Brian Stauffer.
This article appears in the March 2025 issue,
with the headline “The Supreme Trump Court.”

Donald Trump’s first term as president gave the republicans control over the most dangerous body of the most dangerous branch of government: the Supreme Court. With the help of Senate majority leader Mitch McConnell, along with timely retirements and untimely deaths, Trump was able to secure a 6–3 hard-right majority on the court and use it to make the Republicans’ least-popular policy dreams come true. In the brief years since, the court has undermined labor rights, stripped back voting rights, and reduced pregnant people to the status of second-class citizens whose bodies can be controlled by Republican state legislatures eager to use them for labor without compensation.

The Democrats might have used Joe Biden’s four-year interregnum to begin to claw back the Supreme Court from the Republicans’ grip. Particularly during the first two years, with the Democrats in control of the White House and both chambers of Congress, they could have added additional justices to the court. Had they done so, abortion rights could have been saved, voting rights could have been protected, and Trump may have been ruled ineligible to ever run for office again.

Instead, the Democrats did nothing. As the Supreme Court revealed its full moral turpitude to a disgusted public, Congress failed to impose even minimal ethical standards on the justices or cut the court’s funding, while Biden sent court expansion to die in a useless commission.

Now we will experience a time of consequences. Vulnerable communities will pay the price for the Democrats’ inaction—and as bad as the court’s rulings have been in recent years, they are likely to get worse. When the justices are inevitably asked to weigh in on whether Trump can actually revoke birthright citizenship, don’t expect them to stop the guy they literally helped get elected from violating the Constitution. When they hear a lawsuit on whether Elon Musk and his apartheid-adjacent DOGE bros can resegregate the workforce, don’t expect them to honor the 14th Amendment and the Civil Rights Act. As for writing trans kids out of existence while citing the writings of J.K. Rowling as precedent, well, this court has already signaled it’s eager to do that.


In the balance: People demonstrate in support of trans youth as the current court debates a law banning puberty blockers and hormone therapy for trans teens.(Michael Brochstein / SiPA via AP Images)

Still, all of this represents just the opening salvo in a GOP reign of terror that could outlive Trump and most of the people reading this, because Trump’s reelection gives the Republicans a chance to do something even more extreme with the Supreme Court: to make their judicial control permanent. Backed by a healthy majority in the Senate, the Republicans can swap out their oldest justices for younger blood, entrenching their dystopian view that the Constitution confers unlimited rights to gun owners and nobody else. And if the feckless gods decree that one of the Democratic justices should succumb to the ultimate law of nature during the next four years, the Republicans will be able to appoint their replacement as well, giving them a 7–2 majority.

In the case of either of these events, the Supreme Court will not just have a Republican majority by 2029, when Trump leaves office; it will likely have a Trump majority. Trump is now poised to become the first president since Franklin Delano Roosevelt to have appointed a majority of the justices on the Supreme Court. His justices will outlive him, and their impact on law and policy will outlast whatever temporary tragedies Trump brings forth through his executive orders.

Current Issue



March 2025 Issue

To have that kind of decades-long impact, Trump will require some help from the current Republican justices who are past their sell-by date. Clarence Thomas is 76. Sam Alito is 74. John Roberts just turned 70, and while he is unlikely to retire, life starts to get a bit less certain when you hit your eighth decade. Republican lawmakers and Trump himself will actively pressure these Republican justices to retire and offer them golden parachutes or whatever else their corrupt little hearts desire.

The one most likely to leave voluntarily is Alito. While he enjoys the power of being a Supreme Court justice, Alito is also partisan to his very core and is fully capable of reading the room and an actuary table. By retiring while Trump is in the White House and Republicans control the Senate, he could help out his beloved Republican Party, and that is Alito’s greatest mission in life. Alito (and his wife) are rumored to hate Washington, DC. When Trump gives him the opportunity to be replaced by one of his former law clerks, I reckon he’ll take it.


Practicing for retirement? Supreme Court Justice Clarence Thomas and Justice Samuel Alito attend a private event together.(Jacquelyn Martin / Getty Images)

Clarence Thomas, by contrast, will take some convincing. If his health holds, he’s on track to break William O. Douglas’s record as the longest-serving Supreme Court justice—a milestone he’ll reach sometime in 2028. Thomas will never get a spot in the Museum of African American History (unless it opens up a “Sometimes It Be Your Own People” wing), but breaking Douglas’s record is a legacy in itself. And Thomas (and his wife), unlike Alito (and his wife), is believed to really enjoy DC—to say nothing of the many perks that come with being a Supreme Court justice on real estate baron Harlan Crow’s payroll.

Thomas is also an iconoclast, which means that while the pleas for him to retire will get very loud in Republican circles, especially as we approach the 2028 presidential election, he might well resist them. I’ve always thought that, of all the justices on the court, Thomas is the one most likely to die at his desk while doing what he loves, which is taking away rights from Black people and women. Still, I think the raw power of his partisan allegiances will win out in the end—assuming, that is, that Republicans find a university or think tank willing to write Thomas a blank check for the rest of his life.

If Trump does get the opportunity to replace some Supreme Court justices, it’s unclear who will mastermind the actual appointments. Last time, conservative archvillain Leonard Leo called the shots, albeit through his sock puppet, then–White House counsel Don McGahn. Trump’s picks of Neil Gorsuch, alleged attempted rapist Brett Kavanaugh, and Amy Coney Barrett were straight out of Federalist Society central casting.

This time, we don’t know if Leo and his ilk will hold the same kind of power over Trump. Trump’s cabinet appointments show that he values loyal sycophants over competent officials, and there’s every reason to think he’ll try to fill the Supreme Court with people loyal to himself, not Leo. There’s also a new voice in Trump’s ear that wasn’t there the last time: that of shadow president Elon Musk. We don’t know whom he wants to see on the court, but given the amount of litigation that Musk and his businesses are involved in, one expects he’ll have his opinions on Supreme Court appointments, and those opinions will carry weight.

The fluid power dynamics among Trump, Musk, Leo, and the Senate confirmation process—ostensibly under the control of the new Senate majority leader, John Thune—mean that there’s more uncertainty about Trump’s likely Supreme Court nominees than for any incoming president in my lifetime. Indeed, the only thing I can be 100 percent sure of is that whoever Trump picks (and the Senate confirms) will be a deplorable jurist, dedicated to a far-right political agenda masquerading as law, and determined to inject more bigotry, discrimination, and sexism into the Constitution.

Still, in the cauldron of contenders for the nation’s highest court, there are a few names that keep bubbling to the top. Let’s discuss the five most likely people Trump could nominate to entrench one-party Republican rule on the court.

This time, we don’t know if Leo and his ilk will hold the same kind of power over Trump. Trump’s cabinet appointments show that he values loyal sycophants over competent officials, and there’s every reason to think he’ll try to fill the Supreme Court with people loyal to himself, not Leo. There’s also a new voice in Trump’s ear that wasn’t there the last time: that of shadow president Elon Musk. We don’t know whom he wants to see on the court, but given the amount of litigation that Musk and his businesses are involved in, one expects he’ll have his opinions on Supreme Court appointments, and those opinions will carry weight.

The fluid power dynamics among Trump, Musk, Leo, and the Senate confirmation process—ostensibly under the control of the new Senate majority leader, John Thune—mean that there’s more uncertainty about Trump’s likely Supreme Court nominees than for any incoming president in my lifetime. Indeed, the only thing I can be 100 percent sure of is that whoever Trump picks (and the Senate confirms) will be a deplorable jurist, dedicated to a far-right political agenda masquerading as law, and determined to inject more bigotry, discrimination, and sexism into the Constitution.

Still, in the cauldron of contenders for the nation’s highest court, there are a few names that keep bubbling to the top. Let’s discuss the five most likely people Trump could nominate to entrench one-party Republican rule on the court.


(left to right: Shuran Huang / The Washington Post via Getty Images; CC 4.0: Bill Clark / CQ Roll Call; Ed Reinke / AP; Tom Williams / CQ Roll Call)

ANDREW OLDHAM
fifth circuit court of appeals

Most people were concerned that Texas’s litigious and nefarious attorney general, Ken Paxton, would be given some kind of federal appointment in the new Trump administration. But the real threat coming from the Lone Star State is Andy Oldham, a circuit court judge who was appointed to his post by, yes, Donald Trump.

Oldham began making his bones as Texas Governor Greg Abbott’s right-hand lawman. As deputy solicitor general of Texas, he served as what the Alliance for Justice called the “architect” of Texas’s strategy to block Barack Obama’s Deferred Action for Childhood Arrivals (DACA) order. He also took strong stances against environmental protections and reproductive rights—and in favor of gun access. He did so well as deputy SG that Abbott elevated him to serve as his chief legal counsel in 2018.

Oldham didn’t stay in that position very long, however. A few weeks in, Trump nominated him to the Court of Appeals for the Fifth Circuit. There, Oldham has done what Trump expected him to do: He has issued opinions overturning the federal ban on ghost guns and defending Texas’s draconian immigration laws and, in one particularly curious ruling, appeared to support vigilante justice. He has also been an outspoken opponent of what the white wing now calls “DEI.”

But none of that is what makes Oldham stand out, as white male judges who like guns and hate women and Mexicans are a dime a dozen these days. The most interesting thing about Oldham is how poorly written his opinions are. He front-loads his overlong musings with enough amateur-historian babble to make Dan Brown blush, then sermonizes with the kind of conservative zeal that recalls John Lithgow’s character in the movie Footloose. The law, if discussed at all, is relegated to afterthoughts and footnotes.

That doesn’t seem to be a problem for people in Trump world, particularly since Oldham has other qualities they like, among them being against the counting of all eligible ballots—and in favor of presidents being free to commit crimes without prosecution. In October 2024, Oldham wrote an opinion in a case about whether Mississippi could count absentee ballots received after Election Day. He argued that federal law preempted the state from counting such ballots—which was a key part of Trump’s strategy to steal the election should he have lost it—but he did grant that the court shouldn’t block Mississippi from counting those ballots unless they were dispositive.

Of course, Trump won the election fairly, and in November, a week after the election, Oldham headlined a Federalist Society event to crow about it. In his speech, Oldham said that we need to make sure that no one is ever charged “on the basis of their politics” (which, again, is the false narrative Trump has been pushing to explain his multiple felony indictments), and also that the judiciary must be protected from “reprisals” from the legislative branch. According to Oldham, those reprisals include commonsense reforms like court expansion and ethics laws.

While Oldham checks all of Trump’s boxes, it’s unclear whether he can count on the support of the shadow president, Musk. Oldham joined the unanimous opinion in NetChoice v. Paxton, a case that explored whether Texas could regulate social media platforms when they censor content. The opinion rejects “the idea that corporations have a freewheeling First Amendment right to censor what people say.” That opinion was later reversed by the Supreme Court, 9–0.

We know Elon Musk likes to pretend that he’s in favor of free speech and against censorship. We also know that Musk likes to reserve the right to throttle content and shadow-ban people who are not tweeting out pro-Republican messages. Oldham’s minority viewpoint on the right of states to regulate these platforms might well be a strike against him.

Still, Oldham has one final ace up his sleeve: He’s a former clerk for and protégé of Samuel Alito. The last two justices who retired voluntarily (Anthony Kennedy and Stephen Breyer) were replaced by their former clerks (Brett Kavanaugh and Ketanji Brown Jackson, respectively). Promising to replace a justice with somebody they mentored is a mighty big carrot that can be used to entice a justice to leave the bench.

Oldham is only 46 years old. If elevated to the Supreme Court, he could wield power for 30 years or more. Replacing Samuel Alito with a Samuel Alito clone who writes worse, and then forcing us to suffer under his legal yoke indefinitely, sounds like the kind of torment the gods might have debated for Sisyphus before ultimately going with the rock.

The honest truth: A woman demonstrates outside the Supreme Court on the day it ruled in favor of a former police officer who participated in the January 6 coup attempt.(Michael A. McCoy / Getty Images)

JAMES HO
fifth circuit court of appeals

As I said, it can always get worse. James C. Ho is a former clerk for Clarence Thomas and, as with Oldham for Alito, is being mentioned as a potential enticement for Thomas to retire and pass the torch to the next generation.

Ho is from Taiwan (he was naturalized as a US citizen at the age of 9) and, if elevated, would become the first Asian American justice on the Supreme Court. For all of the Republicans’ bluster and vitriol about DEI, they are happy to play identity politics when it suits them. Amy Coney Barrett, for instance, is on the court in part because Trump promised to appoint a woman (who would overturn Roe v. Wade) to replace Ruth Bader Ginsburg. Replacing the second Black justice, who happens to hate Black people, with an immigrant justice who happens to hate immigrants sounds exactly like Republican thinking to me.

Ho is well qualified to perform what Republicans call jurisprudence these days. After law school at the University of Chicago, he was part of the Bush v. Gore team and helped to get George W. Bush appointed president by the court. Ho was rewarded for these efforts with various positions in the Bush Department of Justice. He then served as chief legal counsel for Senator John Cornyn on the Senate Judiciary Committee before clerking for Thomas. After his clerkship, Ho was appointed to be the solicitor general of Texas in 2008, succeeding Senator Ted Cruz in that job. Trump nominated Ho to the Fifth Circuit in 2017, and after he was confirmed, he was sworn in to his seat by Thomas in Harlan Crow’s library. If you designed the career trajectory of a Republican Supreme Court justice in a laboratory, it would look a lot like the path Ho has traveled.

On the Fifth Circuit, Ho has been involved in nearly all of the hot-button culture war issues that have come before his court, and he has staked out extremist positions with unnecessary concurrences almost every time. He’s concurred in numerous gun cases, always arguing that the Second Amendment essentially prevents any restriction or regulation on gun ownership. He concurred in the case that attempted to ban the abortion pill, mifepristone, and gave the wildest justification on record for why the plaintiffs deserved to have standing in the case: He argued that people like dentists have the right to sue abortion-pill makers because they like seeing pregnant women in the wild.

Ho’s father was an ob-gyn, by the way. Reading his opinions is like going to a wildlife reserve with the Trump children instead of David Attenborough: Everything exists for his personal amusement and enjoyment; any natural beauty and tranquility is pierced by insufferable pseudo-scientific chatter; and something is probably going to get shot.

Ho’s opinions are risible, and some commentators have pointed out that this has had the unintentional effect of making him more powerful and popular in Republican circles. In their world, where “owning the libs” is the most valuable currency, Ho is wealthy. Ian Millhiser has written that “if you could breathe life into 4chan” and give that life form the powers and privileges of a federal judge with a lifetime appointment, “you would have created Judge James Ho.”

If Ho were a man of consistent beliefs, that would be one thing, but he’s really just a guy willing to say anything to get his next job. That’s been on full display since Trump’s election. One of Ho’s longest-standing legal opinions is that birthright citizenship is sacrosanct in the Constitution and cannot be undone absent a constitutional amendment. He’s been on record with that belief for nearly 20 years—until it became apparent that Trump was interested in revoking the right. At that point, Ho changed his tune. In an interview he gave a week after Trump’s election, he said, “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship…. And I can’t imagine what the legal argument for that would be.”

James Ho is only 51, and he’s not about to let one bedrock constitutional principle get in the way of his next gig. He has already measured the windows in Thomas’s office, and Harlan Crow is ready to buy him new drapes. If Thomas gets struck by a bolt of lightning in the next four years, it will just mean that Ho has learned how to control the weather.

The proto-Trump court: The nine justices of the current Supreme Court; six were appointed by Republican presidents, including three by Trump during his first term.(Olivier Douliery / AFP via Getty Images)

AILEEN MERCEDES CANNON
us district court for the southern district of florida

Aileen Cannon is a mediocrity in the world of judges. She is common, banal. If you threw a dart into any Federalist Society luncheon at any of the top 15 law schools in the country, you’d most likely end up hitting Aileen Cannon or someone just like her. She has no business being on any list of potential Supreme Court nominees, but she likely will be, for one simple reason: Trump likes surrounding himself with mediocrities who owe their careers and status to him.

Cannon was born in Colombia but grew up in Miami. Her mother is Cuban—she left after the revolution—while her father hails from Indiana. After prep school in Miami, Cannon got her undergraduate degree from Duke University. She was a member of the Tri Delta sorority and wrote for Miami’s Spanish-language newspaper, El Nuevo Herald.

From there, Cannon took a bog-standard path to becoming a federal judge on the Republican side. She went to the University of Michigan Law School, where she joined the Federalist Society, but according to a New York Times profile, “she was not an especially visible presence.” She graduated in 2007, and in 2008 she clerked for Judge Steven Colloton, a George W. Bush appointee, on the Court of Appeals for the Eighth Circuit, out in Iowa.

Rather than getting a Supreme Court clerkship, which is what the alleged bright lights in the Federalist Society firmament usually do, Cannon opted for private practice. She went to the law firm Gibson, Dunn & Crutcher, which has a reputation for being an intellectually safe space for conservative-aligned corporate lawyers. She spent three years making money, and then in 2013 she moved to the US Attorney’s Office for the Southern District of Florida, as an assistant United States attorney.

It is, again, not uncommon for AUSAs to make the jump to becoming a federal judge in the district they serve in, and that’s what Cannon did. In 2019, she was contacted by Florida Senator (and fellow member of the conservative Cuban diaspora) Marco Rubio about a potential elevation to the federal bench. After a series of interviews, she was nominated by Trump to the district court in May 2020, at the age of just 39.

Cannon was confirmed to her post on November 12, 2020, during the lame-duck session of Congress after Trump lost the election but before his forces attacked the Capitol. Her confirmation vote was 56–21, so in addition to inexplicably gaining some Democratic support, she also benefited from the Democrats, once again, just not taking judicial appointments all that seriously.

Nobody outside of a few trial lawyers in Miami would know who Cannon is save for the fact that she was randomly assigned the Trump v. United States case after FBI agents raided Mar-a-Lago and found Trump in possession of stolen classified material. Over the course of that litigation, Cannon took Trump’s side at nearly every turn, issuing bizarre rulings that were criticized as wrong and craven readings of the law by other Federalist Society lawyers—and, in some cases, were overturned by the 11th Circuit on appeal. Nonetheless, Cannon dutifully helped Trump delay the prosecution of the case until he was once again the presumptive Republican nominee for president. Then, in July, she dismissed the case outright.

The stolen-documents case was, in many ways, the greatest threat to Trump’s physical freedom, but Cannon made his problems essentially go away. She did not merely slip Trump a bobby pin so he could unlock his handcuffs; she did him one better and effectively hid him in her house so the state could never put the manacles on him in the first place. An AI judge programmed by Musk and Don Jr. to help Trump wouldn’t be as obvious about its intentions as Cannon.

That’s the only reason Cannon is on this list. There are literally hundreds of conservative judges, lawyers, and law professors with more impressive résumés who have proven track records supporting reactionary conservative causes. There are more rabid Trump judges (such as Andy Oldham and Amarillo District Court Judge Matthew Kacsmaryk) who can be relied on to take away the rights of women, gay and trans people, and any non-white person who dares to ask for equal justice in America. But none of those judges have so openly debased themselves to keep Trump out of prison. Cannon’s sole Supreme Court credential is her willingness to read the law in whichever way helps Trump the most.

Trump could reward her for her service without putting her all the way on the Supreme Court. She is, after all, only a district court judge, and so the next logical step in her career would be an appointment to the Court of Appeals for the 11th Circuit (which oversees Alabama, Florida, and Georgia). Giving Cannon a vote on how federal election laws are applied in Florida and Georgia should be enough of a reward for bootlicking. She’s only 43, and so she has more than enough time to use the 11th Circuit to prove that she belongs on the Supreme Court.

But these are not normal times. Fast-tracking Cannon to the Supreme Court would send a shock wave through the conservative legal establishment and tell every career-minded Federalist Society judge that there’s a new sheriff in town—and that loyalty to Trump is even more important than loyalty to Leonard Leo.

Close call: Healthcare workers protest outside the Supreme Court during oral argments for a case challenging a law requiring hospitals to perform emergency abortions. The court ultimately punted.(Bill Clark / CQ Roll Call via Getty Images)

NEOMI RAO
dc circuit court of appeals

To paraphrase the character bane as he famously explains in The Dark Knight Rises that Batman is not hard-core enough to defeat him: Aileen Cannon merely adopted the dark; Neomi Rao was born in it and molded by it. Rao has been my pick for the most dangerous person who could be appointed to the Supreme Court for eight years running, and I see no objective reason to demote her in my nightmares.

Rao has expressed vile beliefs since she was very young. While in college at Yale, she wrote in The Yale Herald: “Unless someone made her drinks undetectably strong or forced them down her throat, a woman, like a man, decides when and how much to drink. And if she drinks to the point where she can no longer choose, well, getting to that point was part of her choice.” That statement alone should be disqualifying for a person entrusted with the lifetime power of judging other people’s actions.

Of course, Rao’s statements on rape have not been considered disqualifying by the Republicans. In 2018, she was nominated by Trump to the Court of Appeals for the DC Circuit to fill the seat vacated by (wait for it) alleged attempted rapist Brett Kavanaugh. During her confirmation hearing, when she was questioned about her college writings, Rao said that some of them made her “cringe” and that there were “certainly some sentences and phrases” that she “wouldn’t use today”—and that was enough for the Republicans. She was confirmed 53–46, with every single Republican senator voting for her.

Putting the rape stuff aside (which is apparently a grace we’re required to extend to Republicans in our society), Rao has a long record. After graduating from the University of Chicago Law School in 1999, she clerked for Clarence Thomas and then worked in the George W. Bush administration as an associate White House counsel. In 2006, she became a law professor at George Mason University, which has become a kind of breeding ground for conservative judicial groupthink. She was instrumental in getting the law school’s name changed to the Antonin Scalia School of Law (or “ASSlaw,” as I dubbed it, until they again changed the name to the Antonin Scalia Law School to avoid my acronym). There, she staked out strong positions against Roe v. Wade and the administrative state and in favor of the practice of dwarf-tossing for money. She briefly served in the Trump administration’s Office of Information and Regulatory Affairs before he elevated her to the bench.

Since she’s been on the DC Circuit, Rao has been Trump’s most stalwart defender, often writing as the lone dissenter on panels that go 2–1 against him. She was the only one to dissent in three separate cases involving whether the government could subpoena Trump’s records and financial documents. In a fourth case, Rao argued that special prosecutor Jack Smith should not have been able to subpoena records from Twitter involving Trump’s deleted tweets during the January 6 riot. Rao’s rulings should make Shadow President Musk very happy.

When she’s not busy defending Trump, Rao is busy defending his cronies. She voted to dismiss the case that charged former national security adviser Michael Flynn with being an unregistered foreign agent. She was again in dissent, and Flynn eventually pleaded guilty, which led to Trump pardoning him. But, hey, at least she tried.

Perhaps most troubling of all, Rao has a real love for executions. In the last half of Trump’s first term, his administration ramped up the killing of people on death row. When lawsuits trying to stem the tide of death ended up in front of Rao, she consistently ruled on the side of the executioner.

So when I say Rao is dangerous, I mean it literally. We’re talking about a judge who wants to give everybody from Trump to Robert F. Kennedy Jr. to the common hangman a new set of boots.

As they’re both 51-year-old nonwhite former Clarence Thomas clerks, one could view Rao and Ho as competing for the same seat, should it open up. They have certainly been vying over the past few years to see who can produce the most ludicrous opinions. I’d say Ho has just barely “won” this infernal race, but that’s only because Rao hasn’t had an opportunity to write anything about rape or abortion, where she can truly let her freak flag fly. Rao also seems a little gun-shy when talking to the press, perhaps because of the rough confirmation battle over her college articles, while the most dangerous place in Dallas is between James Ho and a camera.

At 51, Rao is young enough that she doesn’t need to be picked for the first seat that becomes available. But should anything happen to one of the three liberal women justices, then I imagine that under the Republicans’ DEI logic, Rao’s gender would make her an appealing replacement for any of them. Indeed, Rao has done every single thing a conservative woman would do if she wanted to be nominated to the Supreme Court by a misogynistic sexual predator like Donald Trump. That’s what makes her terrifying.

Gang of six: Cardboard cutouts of the conservative justices lean aganst a wall in front of the Supreme Court.(Bill Clark / CQ Roll Call via Getty Images)

AMUL ROGER THAPAR
sixth circuit court of appeals

Amul Thapar’s appointment to the Court of Appeals for the Sixth Circuit in 2017 was Trump’s second judicial nomination, following right behind that of Supreme Court Justice Neil Gorsuch. What that should tell you is that Thapar had someone powerful looking out for him—and that person was former Senate majority leader Mitch McConnell.

McConnell plucked Thapar from his role as US attorney for the Eastern District of Kentucky back in 2008 and got him appointed as a district court judge under President George W. Bush. Almost a decade later, McConnell pushed for Thapar to make the jump straight from the district court to the Supreme Court for the seat that eventually went to Gorsuch; Thapar’s appointment to the Sixth Circuit was his consolation prize. McConnell again pushed for Thapar when Justice Anthony Kennedy resigned, but that seat ultimately went to Brett Kavanaugh.

Given that McConnell couldn’t get Thapar onto the Supreme Court from his perch as Senate majority leader, I doubt that he can get Thapar there now, given that McConnell is no longer all-powerful and needs to be rebooted halfway through most of his speeches. There must be something between Thapar and Trump that just doesn’t vibe. My (uninformed) guess as to Thapar’s problem is that he’s smart, hardworking, not openly corrupt, and not as intellectually bankrupt as some of the other potential Supreme Court nominees. These are not qualities that Trump values.

So why is he on this list? Because in any normal Republican administration, Amul Thapar would be the first person nominated to the Supreme Court. Ho and Rao are toxic legal lunatics; Oldham can barely pretend to be concerned about “the law”; and Cannon is a golf caddy dressed in ill-fitting judicial garb. Thapar, by contrast, is just a normal extremist Republican interested in doing normal evil Republican things.

Thapar has gotten to the cusp of supreme lifetime power the long way. Born in Michigan to immigrant parents from India and raised in Ohio, Thapar drove a truck for his father’s HVAC business while in high school. He went to Boston College for his undergraduate years and eventually made his way to Berkeley for law school. But he didn’t get a Supreme Court clerkship and instead worked his way into elite legal circles through private practice, a few adjunct professor gigs, and eventually the US attorney’s office. Along the way, he got married and converted from Hinduism to Catholicism.

Compare Thapar’s backstory with those of the men who beat him out for the Supreme Court job. Both Gorsuch and Kavanaugh are scions of wealth and privilege. They both attended the same elite DC prep school; both went on to Ivy League colleges followed by Ivy League law schools; and both spent time working for the Bush administration. They’re pretty much the same guy, and their petty (fascist)-nerd-versus-(attempted-rapist)-jock squabbles belie the fact that they’re experientially indistinguishable.

If it sounds as though I almost like Thapar, don’t get it twisted. Despite his more humble beginnings, Thapar has spent his career trying to make the world safe for privileged white men. On the Sixth Circuit, he’s been a ruthless defender of white patriarchy, with all of the usual Republican outbursts against women’s rights, LGBTQ rights, immigration, diversity, and the poor.

Thapar’s most notable cases involved Covid. He dissented from a ruling that allowed President Biden’s vaccination mandates to proceed. He joined an opinion saying that the Centers for Disease Control and Prevention had no power to impose an eviction moratorium to protect renters during the pandemic. And he wrote a majority opinion denying the fast-tracking of Covid relief funds to women and minority restaurant owners, saying that the law in question unconstitutionally discriminated against white people.

The Republican legal brain trust loves him because Thapar acts like originalism is the one true gospel. He lectures incessantly about originalism; argues that people should withhold funding from law schools that don’t teach it (notwithstanding the fact that every law school makes you read Antonin Scalia’s opinions and forces you to pretend they’re reasonable); and even wrote a sycophantic book praising Clarence Thomas that I won’t read until I’m consigned to Hell. Thapar (along with Gorsuch) is particularly in favor of the “nondelegation doctrine,” which is a thing conservatives made up to essentially argue that executive agencies don’t have a right to exist because James Madison told them so when they asked him with their Ouija board.

Still, for all his best efforts, Thapar is unlikely to get the job. He’s 55, and when Trump didn’t swap him in for Kavanaugh when the attempted-rape allegations dropped (which is what any normal, non-predator president would have done), that was probably his last, best shot at a Supreme Court gig.

But don’t worry too much about him. With bird flu on the rise, Thapar will likely have many more opportunities to make sure that people suffer and die.

An “evolving” relationship: Donald Trump shakes hands with John Thune, who has replaced Mitch McConnell as Senate majority leader.(Jabin Botsford / The Washington Post via Getty Images)

There are a host of other judges who could be in competition for Supreme Court seats as they open up, but if Alito or Thomas should retire tomorrow, these are the people who I believe will get a first look from the Trump administration. The astute reader will note that on this list of potential nominees, four of the five contestants are not white; four are either immigrants or the children of immigrants; and two are women. The conservative legal bench is deep with immigrant and first-generation jurists who are eager to yank away the ladder that their own families used to pull themselves up, and replete with women who are happy to stand in the way of progress for women’s rights.

For all of that, you’ll notice that the basic, standard, Harvard-educated white guy, Andy Oldham, remains at the top of the list and is by far the most likely person to get the first Supreme Court appointment that becomes available. Some of the others might have a shot should Thomas get raptured or otherwise relinquish his “Black job,” but if Alito retires first, it’s going to be a like-for-like switch.

For my part, I hope Aileen Cannon gets nominated. Yes, I’m serious. Of the poisons arrayed before me, I’ll choose the mediocre partisan hack over the experienced and well-trained evildoer.

I learned this lesson the hard way, back in 2005, when George W. Bush nominated one of his longtime friends, Harriet Miers, to the Supreme Court. The elite legal-industrial complex, including both Senate Republicans and Democrats and expensively educated lawyers like me, were appalled. Miers lacked the august qualifications of traditional Supreme Court justices and was nominated only because she was a Bush crony. Movement Republicans threw a hissy fit, and Bush withdrew Miers’s nomination and then replaced her with… Samuel Alito.

What I’ve learned in the intervening years is that there are far more malign and monstrous things lurking in the bowels of the Federalist Society than mediocre partisan hacks. Cannon would be an awful Supreme Court justice, but she’d be awful in simple, predictable ways. Yes, she’d do whatever democracy-destroying thing Trump wants her to do, but in case you haven’t realized it yet, Trump has already won. The damage he’ll do cannot be mitigated by nine law dorks in robes. If the Supreme Court doesn’t rubber-stamp whatever it is that Trump wants to do, he will do it anyway. The battle for the 2020s has been fought, and the bad guys won.

What matters now are the battles of the 2030s and ’40s, when we will (with any luck) be struggling to undo the damage of the white ethnocentric Trump era. The judges and justices Trump picks this term will be the people we have to overcome in that future. I think my children will be better off trying to overturn some Trump-serving gobbledygook penned by Cannon than trying to de-Klan entire doctrines of racist insanity laid down by Oldham or Ho or Rao.

Whomever Trump picks, though, we are in for hard times. The five people on this list are what Americans voted for when they voted for Trump. People will get what they asked for, and they’ll keep getting it until they learn not to want it anymore.

So if you’re looking for hope over these next terrible years, please do not look to the Supreme Court. Please understand that it has been fully captured by MAGA forces. Even if the court blocks one or two of Trump’s policies, there will be countless others it allows to stand. Trump cannot be fought through the courts, because he has already won the courts.

My hope is that Democrats someday realize that the Supreme Court is their enemy. My hope is that the legacy of the Trump court finally and forever weans the Democrats off their nostalgic memories of the Warren court. My hope is that, should the Democrats ever be allowed to take power again, they will reform and disempower the Supreme Court on Day 1, because that will be the first step toward undoing the damage caused by the Trump era, should any of us survive to see the other side of this nightmare.


ABOUT THE AUTHOR:

Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.


Posted by Kofi Natambu at 5:00 AM