Supreme Court Decides ‘Democracy’ Can Stay, For Now

Fears of the End of the Republic were forestalled until sometime between the next Trump rally and November 2024, as the Supreme Court decided today that state legislatures can’t just make up any old election laws — or results — they want to, without any oversight from state or even federal courts. In Moore v. Harper, the Court decided in a six to three decision — which should have been nine to zero — that the so-called “independent state legislature theory” is dumb and bogus, not to mention seriously fucked in the head. We paraphrase, but only slightly; Chief Justice John Roberts, writing for the majority, actually said the idea was “Insane in the membrane, insane in the brain.”

As many suspected following the oral arguments in December, the three dissenting justices were Clarence Thomas, Samuel Alito, and Neil Gorsuch, who probably belong on a terror watch list.


Big Day At Supreme Court As It Hears Case Of ‘Democracy v. LOL’

Moore v Harper Oral Hearings: Democracy Maybe Only MOSTLY Dead!

NC Supreme Court Brings Back The Racist Gerrymandering Republicans Need To Win

The Independent State Legislature (ISL) Fan Fiction, as NYU Law Prof Melissa Murray likes to call it, starts with a thing that is real and then piles on, with no precedent or reason at all, a bunch of assumptions with virtually no actual backing in case law, US history, or common sense. The Constitution’s elections clause says simply that

The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.

According to the fabulists who made up the ISL foolishness a few decades ago, that clause means that no other state authority, including state courts, governors, or county elections officials, can challenge the legislature’s decisions on federal elections, even if they appear patently unfair.

The case involves an extreme gerrymander passed in 2021 by the heavily Republican North Carolina Legislature, which would give the vast majority of the state’s 14 congressional seats to Republicans. As the Brennan Center explains, the redistricting maps are “so extreme that an evenly divided popular vote would have awarded 10 seats to the Republicans and only four to the Democrats.”

Because North Carolina’s constitution includes a “free elections clause” that prohibits such partisan gerrymandering, the state Supreme Court struck down the map in 2022, calling it an

egregious and intentional partisan gerrymander . . . designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”

That prompted the North Carolina Lege to turn right around and pass a whole new extreme partisan gerrymander, and when it was challenged in state courts, Republicans went to the US Supreme Court to demand that it let the map stand, because independent state legislature, can’t you people even read?

In his decision today, Roberts wrote — actually this time — that several previous Supreme Court precedents had already made clear that state legislatures do not have “exclusive and independent authority when setting the rules governing federal elections,” and that the Elections Clause doesn’t invalidate the fundamental principal of judicial review as established in Marbury v. Madison. He also pointed out that “when legislatures make laws, they are bound by the provisions of the very documents that give them life,” i.e., state constitutions, and so obviously state courts have the power to rein in a state legislature in keeping with that state’s constitution. “You stupidheads,” Roberts did not add.

[NYT / Moore v. Harper]

While we’re at it, let’s also take a quick look at some other Supreme Court decisions we haven’t written about yet this term, just so we have ’em on record for you:

Sex Abuse Lawsuit Against Ohio State U Can Go Forward, you listening, Rep. Jordan?

On Monday, the Court decided not to hear an appeal of a lower court decision that allows more than 230 men to sue Ohio State over sexual abuse by the late Dr. Richard Strauss, who worked at Ohio State from 1978 to 1998. The university has apologized to those abused by Strauss, who killed himself in 2005, and has settled lawsuits with at least 296 victims, to the tune of over $60 million. But it tried to have the unsettled cases dismissed, claiming that the time limit to sue had expired. The AP explains:

The remaining plaintiffs have argued that they filed timely claims and that the time limit didn’t start running until the 2018 investigation into Strauss’ abuse made his conduct public. The men say that was when they first learned that the school had been aware of Strauss’ abuse and failed to protect them from him. Many also only realized then that they’d been victims of abuse since Strauss disguised his abuse as medical care, their lawyers said.

Among those named in the lawsuits is Rep. Jim Jordan, who was the assistant wrestling coach at Ohio State from 1986 to 1994 but insists he never knew what Strauss was up to. A spokesman for Jordan yesterday reiterated Jordan’s claim that he “never saw or heard of any abuse, and if he had, he would have dealt with it.”

[AP / NBC News]

If Alabama Has To Fix Its Racist District Maps, So Does Louisiana

In another short, unsigned decision, the Court on Monday slapped down an “emergency” attempt by Louisiana to block a lower court’s finding that Louisiana has to redraw its congressional district maps to create at least two districts where Black voters have a chance to elect a congressional member of their choice. The Supreme Court refusal to fast-track the case follows its decision earlier this month to toss out a similar racial gerrymander in Alabama, a decision that left many surprised that the Court hadn’t decided to stomp a little more life out of the Voting Rights Act.

The case now goes back to the notoriously rightwing Fifth Circuit Court of Appeals, which may end up affirming Louisiana’s contention that no, its racial gerrymander is very different and more constitutional than Alabama’s, so it’s entirely possible the case will still make it back to the Supremes next term anyway.


Hey Navajo Nation, You Get A Reservation. Water Rights Not So Much

In one of the more bizarre rulings in a while, the Court decided last week that the US government’s 1868 treaty with the Navajo Nation, which established the largest Native American reservation in parts of Arizona, New Mexico, and Utah, didn’t actually require the government to ensure that the tribe would have access to water. ProPublica tries to explain what seems inexplicable: After decades trying to negotiate with the state of Arizona, the Navajo Nation sued, in hopes of getting the Court to define what the tribe’s water rights were, and to order Arizona to stop delaying and allow the Navajo Nation reliable access to water.

ProPublica notes that while tribes have always had to negotiate for water with states, the federal government has also acted on tribes’ behalf by “helping account for how much is needed and available.” But when it came to intervening in the protracted negotiations between the tribe and the state, the Court, in a 5-4 decision, said nah, not our job.

Writing for the majority, Justice Brett Kavanaugh said the tribe’s treaties do not impose “a duty on the United States to take affirmative steps to secure water for the Tribe.”

The case has been dragging through the federal courts since 2003, eventually accumulating briefs from “four states, more than 100 tribes and 27 trade groups representing mining companies and other water-intensive industries.” So much for all that! Now it’s back to the Navajo Nation trying to get an agreement with Arizona, which is already fighting to get enough dwindling Colorado River water for its very important subdivisions and agriculture barons.

Navajo Nation President Buu Nygren said he hopes an agreement may be more likely with Arizona’s new governor Katie Hobbs, who promised while campaigning last year that she would work with tribes to resolve water claims.

Following the Court’s decision last week, Hobbs announced the appointment of four tribal officials — from the Navajo Nation, the Colorado River Indian Tribes, the Gila River Indian Community, and the Ak-Chin Indian Community — to the “Governor’s Water Policy Council,” which already includes Maria Dadgar, the executive director of the Inter Tribal Council of Arizona. So at least there’s a formal place at the water policy table, which is different from the water table (just a little hydrology joke there).

Justice Neil Gorsuch continued his advocacy for tribal rights with a scathing dissent in which he agreed with tribes that the 1868 treaty does so guarantee “enforceable water rights” that the federal government is obligated to define.

“The Navajo have tried it all. They have written federal officials. They have moved this Court to clarify the United States’ responsibilities when representing them. They have sought to intervene directly in water-related litigation,” Gorsuch wrote. “At each turn, they have received the same answer: ‘Try again.’”

ProPublica also notes — drily, as is only appropriate — that if negotiations with Arizona go nowhere, the Navajo Nation’s “other option is continuing a water adjudication case in state court that began in 1978, involves 14,000 claims and has no end in sight.”

[ProPublica / Gov. Katie Hobbs / NBC News]

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You Got Your Abortion Bill In My Trans Ban!

There was a hell of a lot of news just yesterday about the ongoing effort to make sure women, children, and some men too don’t get any silly ideas about having bodily autonomy, so let’s dig right in, with the reminder that the GOP’s drive to ban abortion everywhere is hugely unpopular with everyone except the hardcore anti-abortion folks who now dominate the Gruesome Orc Party.

North Carolina: GOP Lege Overrides Veto, Passes 12-Week Ban

The Republican supermajority in both houses of the North Carolina Legislature voted Tuesday to override Democratic Gov. Roy Cooper’s recent veto, passing a ban on abortions after 12 weeks of pregnancy. The veto override wouldn’t have been possible in the state House without the party switch by state Rep. Tricia Cotham, who suddenly announced in April that she had decided to become a Republican. That move cemented a two-thirds GOP majority in the House, and now we’re sure Cotham is very happy with her 30 pieces of flair from GOP donors. Back in ancient times — i.e., January of this year — Cotham cosponsored a bill that would have codified abortion rights into state law, but honestly, who remembers January any more? We have a feeling that voters may remember Cotham’s switcheroo in 2024.

Yesterday’s vote means that there are now no states south of Virginia and east of New Mexico where abortion remains legal and relatively easy to obtain. Even inside the 12-week limit, abortions in North Carolina will require a 72-hour waiting period between an initial visit and the actual provision of abortion services, even for medical abortions using mifepristone, if it remains legal. Doctors must be present when patients take the pill as well. [Politico]

National: Appeals Court Hears Abortion Pill Ban Today

The federal appeals court in New Orleans is hearing oral arguments today in the unspeakably shoddy lawsuit to reverse the FDA’s 2000 approval of the abortion drug mifepristone. The lawsuit, custom made for Matthew Kacsmaryk, a Trump-appointed federal judge in Texas, should have been laughed out of court from the start because the plaintiffs have no plausible standing in the case, and because the alleged “scientific” evidence that the FDA wrongly approved the drug is crap, but then, that’s the Trump judiciary we have. The case is being heard in the notoriously rightwing Fifth Circuit Court of Appeals by a three-judge panel consisting of two Trump appointees and a GW Bush appointee, all of whom have histories of supporting abortion restrictions. One of the judges, Trump appointee James Ho, called abortion a “moral tragedy” in a 2018 opinion, and you just ignore the research showing that 99 percent of women who’ve had abortions continue to believe it was the right choice even several years later. They’ve all been brainwashed to rationalize their decision, you see.

In addition to the bullshit Texas case, the appeals court will also hear the case from Washington state that ruled the FDA can’t reverse its approval of mifepristone. That case has been combined with the one from Texas. In April, the Supreme Court issued a stay on enforcement of Kacsmaryk’s ruling, meaning that mifepristone will remain available at least until the Fifth Circuit rules in the case at some point following today’s arguments. Whatever the outcome, get ready for the entire shitshow of legal uncertainty to start all over again until the case eventually gets to the Supreme Court. [NBC News / AP]

Montana: Greg Gianforte Signs Abortion Restrictions Days After State Supreme Court Upholds Abortion Rights

In Montana Tuesday, Republican Gov. Greg Gianforte body-slammed reproductive freedom by signing four anti-abortion bills, which included a 12-week ban on all dilation and evacuation abortions after 15 weeks. Other restrictions signed by Gianforte will add new regulations on clinics and restrict Medicaid coverage for abortions.

As the Montana Free Press reports, Gianforte’s approval of the abortion restrictions came just days after the Montana Supreme Court

upheld a nearly 25-year-old legal precedent allowing abortion access under the state Constitution’s right to privacy. That case, Weems v. State, found that advanced practice nurse practitioners with proper training can provide abortions in Montana and reaffirmed that women have a fundamental right “to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk.”

But then, what does the state supreme court know about state law anyway? Gianforte issued a statement saying he was “proud to round out our legislative session with another suite of pro-life, pro-family bills that protect the lives of unborn babies in Montana,” and if your family includes anyone who thinks they need an abortion, then clearly it’s not a real family.

The legislation is likely to face a legal challenge, what with the earlier state supreme court ruling. Also, as the Montana Free Press notes, the legislation

bars “dismemberment abortion,” a nonmedical term that the legislation defines in part as “the use or prescription of any instrument, medicine, drug, or other substance or device” to intentionally terminate pregnancies and the “insertion of grasping instruments” to remove a fetus.

The law includes exceptions for the treatment of ectopic pregnancies, and for “medical emergencies,” which of course can be a dicey determination that leads to delays of any treatment until a patient is close to death. Planned Parenthood of Montana immediately filed a motion in state court Tuesday to prevent the new law from being enforced. [Montana Free Press]

Nebraska: GOP Breaks Filibuster Of Anti-Trans Bill By Adding Abortion Ban, Because Why Not Oppress Everyone?

Finally, the GOP’s two most repulsive movements to restrict human freedom merged in Nebraska yesterday, as Republicans in the state’s unicameral Legislature sought to use a ban on abortion to break the three-month filibuster against the Republicans’ attempts to ban gender-affirming care for transgender minors. Democratic state Sens. Machaela Cavanaugh and Megan Hunt (who has a trans son, aged 12) have been absolute BOSSES in their ongoing efforts to kill the anti-trans bill, refusing to allow any legislation at all to move forward until Republicans dropped it. And it worked for months, until yesterday.

Independent reporter Erin Reed reports that in the latest attempt to move the anti-trans bill, LB 574, Republican state Sen. Ben Hansen amended the bill with a ban on abortions after 12 weeks. (Really 10 weeks, since pregnancy by statute “begins” with the the patient’s last missed period.) In addition, his amendment hands all authority on rules related to healthcare for trans youth to the state’s Chief Medical Officer, who of course was appointed by the Republican Gov. Jim Pillen. Says Reed,

While some may label this as a compromise, it feels like a more radical turn. It underlines the unsettling truth that the battles over gender-affirming care and abortion rights are not separate, but rather two faces of the same coin, driven by the same factions, using the same justifications to limit access to vital care.

The amendment technically drops the part of LB 574 that forbids puberty blockers and hormone therapy, instead only banning gender-affirming surgical procedures for anyone under the age of 19. That seems like a compromise, since the vast majority of trans people don’t seek surgery until after they’re adults anyway.

Oh, but then there’s the catch: By transferring all authority to set rules on gender affirming care to the state’s Chief Medical Officer, the amendment simply shifts the banning of puberty blockers and hormone treatment from the Lege to that appointed bureaucrat, Dr. Timothy Tesmer, who will almost certainly eliminate the treatments — and would also be free to add other restrictions that weren’t in the original version of LB 574. Sneaky, huh?

The amended bill moved forward last night in a procedural vote that broke the filibuster by a single vote.

Sen. Cavanaugh this morning gave a powerful speech evoking the words of Montana state Rep. Zooey Zephyr, condemning the dishonest tactics used by Republicans in forcing an end to the filibuster by combining two Republican obsessions, punishing women for having sex, and punishing trans people for existing:

“You literally have to cheat at every moment of this debate. In every possible way, you are cheating. […]

“Women will die. Children are dying. It is your fault. It is your fault! And you are allowing it to happen. You DO literally have blood on your hands, and if you vote for this you will have buckets and buckets of blood on your hands.”

After a final round of debate today, the combined measure is likely to pass — and then the fight to protect trans young people’s lives will shift to the courts. Sen. Hunt noted minutes ago on Twitter that she’s already getting death threats, but she’s not afraid. The more the bastards attack people’s rights to be themselves and to have autonomy over their own bodies, the more they will lose. She also eloquently pointed out that the Nebraska case makes clear once and for all that these are not separate issues (and for that matter, neither are the attacks on schools and libraries).

“Trans rights are directly tied to the greater fight for reproductive rights and bodily autonomy – we are all in this fight together, no one is siloed away from being impacted by the rollback of our collective rights.

“What’s happening in Nebraska is proof.”

Americans are not going to stand for this, and we all need to come together to protect our rights. Get ready for a long fight, and organize, organize, organize. We’ll close with a prayer from Rev. Molly Ivins, from her final column. She was talking about the Iraq War and George W. Bush, but it applies here, today, just as well; just substitute “women and trans kids” for “troops” and it’s right on target:

We are the people who run this country. We are the deciders. And every single day, every single one of us needs to step outside and take some action to help stop this war. Raise hell. Think of something to make the ridiculous look ridiculous. Make our troops know we’re for them. […] We need people in the streets, banging pots and pans and demanding, “Stop it, now!”


[Erin in the Morning / Omaha World-Herald / Photo: Ted Eytan, Creative Commons License 2.0]

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