“We now know that Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, spent the weeks after the 2020 election cheerleading the Trump White House’s efforts to overturn President Joe Biden’s victory in that election. One detail we do not yet know, however, is what Justice Thomas knew about his wife’s communications, and whether he tried to use his office to protect her.
In January, the Supreme Court permitted the US House committee investigating the January 6 attacks on the Capitol to obtain hundreds of pages of White House records that may shine a light on former President Donald Trump’s efforts to thwart the peaceful transfer of power to Biden. These records may or may not contain additional evidence linking Ginni Thomas to January 6.
If Clarence Thomas had his way, the House committee and the public would never know. Thomas was the only justice to publicly dissent from the Supreme Court’s decision to let the House committee obtain these records — though he offered no explanation for why he dissented.
But here’s the thing: Yes, Thomas’s vote in this case, Trump v. Thompson, may have been an underhanded effort to protect his own wife. But his vote in Trump was entirely consistent with his record in cases where his spouse does not have a personal interest.
In more than three decades on the Supreme Court, Thomas has consistently voted to make it harder for many Americans to have their vote count; to erode institutions, like a free press, that are essential to democracy; and to dismantle nearly a century’s worth of democratically enacted laws on spurious constitutional grounds. Thomas’s opposition to democracy is not rooted in nepotism. It appears to be quite principled.
Among other things, Thomas is the only sitting justice who voted to install a Republican president in Bush v. Gore (2000) — although three other current justices were part of Republican George W. Bush’s legal team in that case. Thomas would allow Republican administrations to deactivate the entire Voting Rights Act so long as they are in power. He would strip journalists of First Amendment rights that allow them to safely provide critical coverage of government officials. And he would invalidate a long list of laws including the federal bans on child labor and on whites-only lunch counters, based on a widely rejected reading of the constitutional provision that grants Congress most of its power over the private sector.
No matter how the scandal with his wife’s texts shakes out, it’s worth remembering how the Court’s longest-serving justice would shape the world. In Clarence Thomas’s America, elections would be skewed so heavily in the Republican Party’s favor that Democrats will struggle to ever gain power. And if Democrats somehow do manage to squeak into office, Thomas would ensure that they cannot govern.”
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“In 1960, civil rights activists aligned with Martin Luther King, Jr. ran an advertisement in the New York Times, which alleged that Alabama police used brutal tactics to suppress student protests. The ad, however, contained some minor factual errors. It misidentified the song that protesters sang at a particular demonstration, for example, and it also claimed that police had arrested King seven times, when he’d in fact only been arrested four times.
Pointing to these small errors, a Jim Crow police official won a $500,000 verdict against the Times in an Alabama court — close to $5 million in 2022 dollars. Had this verdict stood, it would have chilled journalism of all kinds, because it would have meant that any newspaper or other outlet that prints even very small factual mistakes could have been hit with a verdict large enough to bankrupt the outlet.
The New York Times decision, however, prevented this outcome by holding that the First Amendment imposes limits on defamation lawsuits. When someone speaks about a public figure and about a matter of public concern, the Court held, they cannot be held liable for making false statements unless that statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Thomas argued in McKee v. Cosby (2019) that New York Times should be overruled. Indeed, Thomas’s opinion suggests that states should be free to define their own defamation law free of constitutional constraints. “The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas wrote.
If this approach were to prevail, state officials could once again use malicious defamation lawsuits to target journalists. Suppose, for example, that I mistakenly report that “500 people attended a rally protesting Florida Gov. Ron DeSantis,” when in fact the rally was attended by only 450 people. If states can set their own defamation laws, free of constitutional constraint, then DeSantis could sue me and Vox Media for millions, endangering our ability to continue reporting on DeSantis — and potentially bankrupting Vox in the process.”
“GOP senators who are attacking President Joe Biden’s Supreme Court pick seem weirdly unaware of how our justice system works. By focusing in part on Ketanji Brown Jackson’s former role as a criminal defense attorney, they act as if it’s wrong to provide a defense to people accused of a crime—and that if the government levels a charge, it must be right.
Hey, if you haven’t done anything wrong, you have nothing to fear—or something like that. “Like any attorney who has been in any kind of practice, they are going to have to answer for the clients they represented and the arguments they made,” Sen. Josh Hawley (R–Mo.) said in reference to Jackson and other Biden nominees. Apparently, defense attorneys should only defend choirboys.
Yet I guarantee if Hawley—known for his fist pump in support of Jan. 6 protestors at the U.S. Capitol—became the target of an overzealous prosecutor who accused him of inciting an insurrection, he’d be happy to have a competent defense attorney to advocate on his behalf. That attorney shouldn’t be forever stained for defending someone as loathsome as Hawley.”
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“Jackson will be the nation’s first Supreme Court justice to have served as a public defender, with Thurgood Marshall being the last justice to have criminal defense experience.”
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“A study last year by the libertarian Cato Institute found the Trump administration’s judicial appointments tilted in favor of prosecutors over those who represented individuals by a 10-to-one margin. Only 14 percent of the liberal Obama administration’s appointees defended individuals. Most judges strive to be fair, but their backgrounds color their worldview.”
“The role of popular elections as the source of ruling legitimacy is just one way in which it is hard to categorize the Russian political system. For all the talk of Putin’s dictatorial personality and wide latitude to crackdown on civil liberties, the institutions of Putinism were built by his democratic predecessor, Boris Yeltsin, enshrined in his 1993 constitution. Flawed and imperfect in practice during the tumultuous 1990s, these foundations were democratic in principle: Grassroots civil society flourished alongside a lively media environment, as legislators and leaders were chosen from a variety of contenders. Even as those liberties have subsequently been eroded and independent media curtailed, the institutions still specify that Russia’s leaders serve at the will of the people. Indeed, the ratcheting-up of Kremlin propaganda is meant, more than anything, to reassure Russians that Putin’s leadership is worthy of their continued support. Such peans to the people would be unnecessary in a classic, run-of-the-mill dictatorship.
Consequently, political scientists are at odds with how to describe Putin’s Russia. Some call it a “competitive authoritarian” regime, where democratic institutions and procedures simply provide a facade of legitimacy for the dictatorship. Others label it an “information autocracy,” in which the powers of state-run media are marshaled to build a public image of Putin as a competent leader, deserving of political support, and it works to generate the popular support he needs. What these different perspectives have in common is what Peskov said: that Putin’s political sovereignty ultimately lies with the Russian people, however manipulated or misinformed they might be.”
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“Western hopes that the Russian people would rise up and topple Putin in a popular revolution seem further from reality today than at the start of the war. The smattering of protests across Russia during the first weeks of the war have largely fizzled out. Between the Kremlin propaganda machine in overdrive and criminalization of expressions of opposition, Putin’s approval in nationwide polls is now up to 83 percent, with 81 percent support for the “special military operation.”
What’s more, Russian elites appear to be consolidating behind Putin. Rather than diversifying internationally and finding safe havens abroad, powerful oligarchs and cosmopolitan elites—many of them under Western sanctions—now understand that they are tethered to Russia and to Putin personally. Once-feuding factions are realizing they’re all now in the same boat. Few will bolt for greener pastures in Europe or the U.S., even if they could.
In an eye-opening account by independent Russian journalist Farida Rustamova on the tribulations of Russia’s political elites since the war, she quotes a high-ranking source in a sanctioned Russian company as saying “All these personal sanctions cement the elites. Everyone who was thinking about a new life understands that, for the next 10-15 years at least, their lives are concentrated in Russia, their children will study in Russia, their families will live in Russia. These people feel offended. They will not overthrow anyone, but will build their lives here.”
Before the war, the dominant narrative of Kremlin-controlled media was that Russia is a mighty superpower—besieged on all sides by enemies and conspirators, both Western and homegrown—and only Putin could lead them. Lamentably, the coordinated international response to Putin’s bloody war has only solidified and reinforced that us-against-the-world narrative, and largely rallied the Russian people behind Putin.
In this context, the Russian response to the accusations of genocide in Ukraine have been predictable: It is all a Western “fake” meant to further impugn the dignity of Russia and its leader. Pro-Russian social media accounts have claimed that the corpses are either fake, or are actors, or were killed after the Russians left. The Russian Defense Ministry has claimed “not a single local resident has suffered any violent action” while Bucha was under Russian control. These are all claims that have been easily debunked. By parroting the official line of the Foreign Affairs Ministry that it could not have been Russia that committed such atrocities, but rather the United States staging a “provocation,” Kremlin state-run media only reinforces and retrenches the us-against-the-world narrative already widely accepted among the Russian people.”
“OSHA’s ETS, which it published on November 5, demands that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and undergo weekly virus testing. The U.S. Court of Appeals for the 5th Circuit stayed the ETS on November 6, citing “grave statutory and constitutional issues.” The 5th Circuit extended that stay a week later, when it said the mandate is “fatally flawed” because it “grossly exceeds OSHA’s statutory authority.”
After that ruling, the many lawsuits challenging the mandate were consolidated and assigned by lottery to the 6th Circuit, which the Biden administration asked to lift the 5th Circuit’s stay. In doing so, the 6th Circuit majority criticized the other appeals court for reaching hasty conclusions unsupported by precedent and for failing to properly consider the evidence that OSHA presented in favor of its mandate.
An emergency standard allows OSHA to circumvent the usual rule making process by publishing regulations that take effect immediately. But to avoid the public notice, comment, and hearing requirements that ordinarily apply to OSHA rules, the agency has to identify a “grave danger” to employees “from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” It also has to show the emergency standard is “necessary to protect employees from such danger.”
In her 6th Circuit majority opinion, Stranch has little trouble concluding that COVID-19 qualifies as an “agent” that is “physically harmful.” Citing the Merriam-Webster Collegiate Dictionary, she says “an ‘agent’ is ‘a chemically, physically, or biologically active principle,'” while “a virus is defined, in part, as ‘any [of a] large group of submicroscopic infectious agents.'””
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“Larsen opens her dissent by chiding Stranch for misrepresenting reality. “The majority opinion describes the emergency rule at issue here as permitting employers ‘to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces,'” she writes. “With respect, that was the state of federal law before the rule, not after.”
Larsen also suggests that Stranch has pulled a bait and switch. “The majority opinion initially agrees…that an emergency standard must be more than ‘reasonably necessary’; it must be ‘essential,'” she writes. “But then that word, and the concept, disappear from the analysis. What starts as a demand for an ‘essential’ solution quickly turns into acceptance of any ‘effective’ or ‘meaningful’ remedy; and later, acquiescence to a solution with a mere ‘reasonable’ ‘relationship’ to the problem. The majority opinion never explains why ‘necessary’ undergoes such a metamorphosis.”
As Larsen sees it, OSHA “has not made the appropriate finding of necessity.” She notes that “OSHA’s mandate applies, in undifferentiated fashion, to a vast swath of Americans: 84 million workers, 26 million unvaccinated, with varying levels of exposure and risk.” OSHA has the burden of explaining “why the rule should apply to a large and diverse class,” she says, but the agency “does not do so.””
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“In some respects, Larsen thinks, OSHA’s judgments are inconsistent with the numbers it cites. “OSHA has determined that no vaccinated worker is in ‘grave danger,’ whereas all unvaccinated workers are,” Larsen writes. “But the government’s own data reveal that the death rate for unvaccinated people between the ages of 18 and 29 is roughly equivalent to that of vaccinated persons between 50 and 64. So an unvaccinated 18-year-old bears the same risk as a vaccinated 50-year-old. And yet, the 18-year-old is in grave danger, while the 50-year-old is not. One of these conclusions must be wrong; either way is a problem for OSHA’s rule.””
“South Dakota voters made history last November by simultaneously approving ballot initiatives aimed at legalizing recreational and medical use of marijuana. The success of the broader initiative, Amendment A, was especially striking because it prevailed by an eight-point margin in a state that is mostly Republican and largely conservative. But thanks to a legal challenge backed by Republican Gov. Kristi Noem, Amendment A was almost immediately tied up in litigation, and last Wednesday the South Dakota Supreme Court definitively overturned it, ruling that the measure violated the “single subject” rule for constitutional amendments.”
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“State legislators proved more willing to set aside their personal views on marijuana in deference to the policy preferred by voters. “In my mind, [legalization is] inevitable because we’ve already seen the support from the public,” Senate Majority Leader Gary Cammack said after Klinger’s decision. “I didn’t vote for recreational marijuana, but my constituents did,” added Greg Jamison, another Republican senator. “Rarely do we get a chance to enact a law and not for sure know what our constituents think of that. Here we know.”
In response to such comments from members of her own party, Noem threatened to veto any legalization bill the legislature might decide to pass. Noem later suggested she might be open to decriminalizing low-level marijuana possession. Possessing two ounces or less is currently a misdemeanor punishable by up to a year in jail and a maximum $2,000 fine.”
“State secrets privilege, as the doctrine is known, has a long and sketchy history, evolving from bad official behavior after a 1948 plane crash that killed several civilian observers. When the observers’ widows sued in United States v. Reynolds, the government argued that information about the plane was too super-secret to be revealed in court. The Supreme Court agreed that some things are too sensitive to be used in legal proceedings and gave the executive branch a free pass to invoke the phrase “national security” as a shield against accountability.
“Decades later, declassified documents revealed that the flight had no national security import at all and that Air Force officials had perjured themselves when they told the Court otherwise,” Reason’s Matt Welch observed in 2006. “In the meantime, the ruling provided the framework for executive privilege, which the Bush administration has been trying to expand.”
Not just the Bush administration appreciated state secrets privilege, of course; all presidents enjoy the ability to act without consequence. That’s how we end up all these years later with the question of whether the state secrets privilege is so broad that it can protect federal agents from the need to square spying on Americans with the protections afforded by the Constitution.”
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“the government isn’t arguing just that some information is too sensitive for the public, but also that it should be kept from judges’ eyes. That would leave people with no recourse at all when federal agencies invoke the magic phrase “national security” to block lawsuits alleging rights violations.”
“Almost immediately after President Joe Biden took office, his administration started to roll back his predecessor Donald Trump’s “Remain in Mexico” policy, which required many asylum seekers who arrive at the United States’ southern border to stay in Mexico while they await a hearing on their asylum claim.”
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” however, a Trump-appointed judge to a federal court in Texas effectively ordered the federal government to reinstate this Trump-era policy — which is officially known as the Migrant Protection Protocols (MPP) — permanently. Judge Matthew Kacsmaryk’s opinion in Texas v. Biden makes the implausible argument that a federal immigration law enacted by Congress in 1996 makes the Remain in Mexico policy mandatory, unless the federal government detains every asylum seeker who is not sent back to Mexico.
Trump’s Remain in Mexico policy was not implemented until early 2019. So the upshot of Kacsmaryk’s opinion is that the federal government was in violation of this 1996 statute for half of the Clinton administration, the entire George W. Bush administration, the entire Obama administration, and most of the Trump administration.
In reality, that 1996 federal law is part of a web of statutes and constitutional doctrines giving immigration officials multiple options when an asylum seeker arrives at the US-Mexico border. One provision of federal immigration law provides that most of these asylum seekers “shall be detained” while they await a hearing.”
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“Kacsmaryk’s decision, moreover, is expected to be appealed to the Fifth Circuit Court of Appeals, one of the most conservative courts in the country — and then potentially to a Supreme Court where Republican appointees have a 6-3 supermajority.
So, while Kacsmaryk’s opinion is wrong on the law, there is no guarantee that it will be reversed by a higher court.”
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“Kacsmaryk is one of many Trump appointees to the federal bench who appears to have been chosen largely due to his unusually conservative political views. Prior to becoming a judge, Kacsmaryk was deputy general counsel for the First Liberty Institute, a firm that largely litigates on behalf of causes of the religious right. In his past writings, he labeled being transgender a “mental disorder” and claimed that gay people are “disordered.”
As recently as 2015, Kacsmaryk published an article denouncing a “Sexual Revolution” that “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”
He’s also the third conservative federal judge in Texas to strike down an immigration policy supported by the Biden administration.”
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“The Supreme Court’s decisions are supposed to give federal officials a great deal of discretion to shape immigration policy — and to afford mercy to individual immigrants. As the Court explained in Arizona v. United States (2012) “a principal feature of the removal system is the broad discretion exercised by immigration officials.”
But judges like Kacsmaryk, Tipton, and Hanen appear eager to strip the Biden administration of that discretion. With a 6-3 conservative Supreme Court overseeing the judiciary, these judges may very well get away with it.”
“The Court’s ruling is a crash course in the lopsided logic behind qualified immunity, which requires that the facts of any given case be reflected almost identically in a previous case should a victim of government abuse want the privilege of bringing their suit before a jury.”
“In an important win for Fourth Amendment advocates, a Virginia man’s arrest for refusing to show identification to the police has been ruled unconstitutional by a federal appellate court.”
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” “To be sure, officers may always request someone’s identification during a voluntary encounter,” the court said. “But they may not compel it by threat of criminal sanction. Allowing a county to criminalize a person’s silence outside the confines of a valid seizure would press our conception of voluntary encounters beyond its logical limits. We therefore decline to do so here.”
If Wingate had been lawfully detained by the police, the 4th Circuit said, then the officer could require him to show ID. But that was not what happened here.”