A Judiciary Meant For Better Things

The United States Supreme Court

It was a jarring last week of the Supreme Court’s 2017 term. On Monday, the Court reversed lower court findings that Texas’s legislature had racially gerrymandered its state legislative districts. On Tuesday, the Court struck down California regulations intended to regulate the disinformation that so-called “crisis pregnancy centers” give to women seeking an abortion and upheld President Trump’s travel ban as a facially neutral immigration regulation rather than the blatant religious discrimination it plainly was. And on Wednesday, Justice Alito finally found five votes for his six-year-long campaign against public sector unions, as the Court effectively enshrined “right to work” legislation into the constitution, applicable to all fifty states. Each of these decisions was by a 5-4 vote, with Justice Gorsuch in the majority, contentedly in the background supporting decisions of his longer-tenured colleagues. Each decision, in its own way, ignored settled precedent, exposed blatant contradictions with the majority’s prior views, and set back democracy and civil rights decades.

But it was Justice Anthony Kennedy’s retirement later that Wednesday that proved to be the gut punch that underscored just how deeply damaging the 2014 and 2016 elections were. In 2014, the GOP essentially ran a campaign against Ebola-infected ISIS terrorists crossing into Texas through the southern border, and then used the Senate majority they built from that disingenuous messaging to block President Obama from placing a reasonable, consensus jurist on the Supreme Court. And in 2016, a minority of voters, elevated through the electoral college, allowed an authoritarian demagogue to fill that seat and any others that might arise. For all his unorthodoxies, President Trump surely knows that fidelity to the Federalist Society is his most important political consideration. As a result, Justice Kennedy’s withdrawal from public life surely means the medium-term end of a Supreme Court able to project the best ideals of our founding fathers. Continue reading


Take Them Seriously

Not to go all Marco Rubio on you, but let’s dispel this fiction that Trump supporters don’t know what they’re doing. They know exactly what they’re doing. To support this president, to support this man, you must support, or at least be comfortable with, state sanctioned violence against people of color. Not off-hand political incorrectness, not a person simply free to speak his mind and stand up to liberal bullying, but directed, purposeful, and continuous harm meted out based on race, religion, and national origin. It has been the driving force of Donald Trump’s political life and the only principle he has been unwilling to betray.

The persistent myth that Trump was elected due to some ethereal connection to America’s forgotten man rather than successfully activating racial animus must be buried. Trump said it with his opening words— “they’re bringing drugs, they’re bringing crime, they’re rapists”—and he has not relented. This simple fact has been obfuscated by the unpleasantness of the conclusion: “Are you saying that 63 million people are racists?” But that’s the wrong question.
Continue reading

Adjusting the Coverage

The original sin of the 2016 election, the fundamental rot that allowed a conspiratorial, vulgar ignoramus to ascend to the presidency of the United States of America, was the free-flowing “earned” media pumping life into the primary campaign of Donald J. Trump. A New York Times report from March 2016, nearly three months before he had secured enough delegates to be anointed the presumptive GOP nominee, cited an analysis by MediaQuant that Trump had received nearly $2 billion worth of free media coverage by that point in the campaign. By the end of the 2016 election, Trump successfully rode $4.96 billion in earned media all the way to the White House. Earned media, of course, is the sanitized press euphemism for the irresponsible fascination the press had with the Trump campaign. Donald Trump was substance free, but content filled. And the media took the bait.

Trump’s transition from candidate to president-elect prompted some mild recriminations within the industry. That introspection and Trump’s changing role have prompted some positive changes. The media is far more willing to label Trump’s dissembling as the lies that they are, although perhaps not sufficiently so. The tenor of interviews with administration officials has been admirably tough. And thankfully, cable news networks are no longer just airing whole Trump rallies live, as they frequently did in late 2015 and early 2016.

Yet, Trump has maintained his deft touch for manipulating the media and muddying the waters. In doing so, he has solidified his approval rating and given congressional Republicans an increasingly positive, though still challenging, outlook for November. That’s because for all their hard-hitting Trump journalism, the media has not taken a single step in remedying the most pervasive deficiency in their coverage of a fundamentally dishonest and disorganized politician: It’s not whether you cover a story, but how you cover it and for how long. Continue reading

The Rosenstein Conundrum

Rod Rosenstein

A comedy skit performed during a recent podcast episode of Slate’s Trumpcast pinpointed one of the most disorienting features of the Trump era for those who oppose it. Comedians Steve Waltien, Kate James, and Asher Perlman held a mock meeting of liberals to reevaluate their political and social opinions given the topsy-turvy happenings of our national moment (among their new verdicts: Rex Tillerson good, Kombucha bad). Beyond the laugh-lines, it’s a deeply resonant concept for those moved by the endless contortions and contradictions of our president. It calls to mind the Mother Jones report from last month that liberal feminist women were congregating at Stormy Daniels strip shows. Life can be confusing when your mantra is “the enemy of my enemy is my friend.”

Perhaps no one embodies this push and pull like Deputy Attorney General Rod Rosenstein. He’s a Trump political appointee. But he’s a career Justice Department lawyer with a reputation for integrity. Yet, he authored a deeply disingenuous memo that served as the pretext for James Comey’s firing. But he appointed a Special Counsel to investigate Russia’s election interference and coordination with the Trump campaign. Yet, he has acquiesced in Trump’s efforts to discredit the Russia investigation by releasing misleading FBI agents’ text messages. But he spoke out defiantly against congressional Republicans attempting to derail that investigation. Yet, he gave in to GOP demands to disclose highly confidential investigation materials. Hey liberals, where do we stand on Rosenstein again?

Now, there’s a greater conundrum at the center of the Rosenstein riddle coming to a head in the coming months. The deputy attorney general appears to be the only Trump-appointee insulating the Special Counsel investigation from the president’s meddlesome hands. Yet, that very supervision is becoming one of the Mueller investigation’s greatest threats. Continue reading

Malign Motivations at the Supreme Court

We are now just weeks away from the end of the Supreme Court term and with it a resolution of Trump v. Hawaii. That’s the case that will determine whether President Trump’s executive order banning travel from five predominately Muslim countries will stand (restrictions on travel from North Korea and Venezuela, also part of the ban, are not part of the case). As we previously discussed, the case’s constitutional claims target Trump’s nearly three-year record of vehemently anti-Muslim rhetoric, but the justices were nearly uniformly hesitant to address the president’s bigotry head-on. Consequently, much of the commentary thus far has speculated that a 5-4 majority will uphold the ban. That prediction seems reasonable, if not entirely safe, given the skeptical, even disinterested line of questioning from Chief Justice Roberts and Justice Kennedy regarding “the statements.” Meanwhile, the Court seems poised to dismiss the challengers’ arguments on statutory grounds that the administration discriminated based on nationality and did not actually act to prevent threats detrimental to the United States. Federal immigration law’s broad grant of power and the Court’s traditional deference on matters of national security to the executive seem likely to win the day.

Yet, if the Court upholds the administration’s travel ban, it will have to dispose of the challengers’ constitutional claim that the executive order was motivated by religious discrimination. Perhaps the Court will duck behind the administration’s claim that the challengers lack standing to sustain a constitutional attack. The government has argued that the challengers—U.S. states and their citizens whose family members have been denied entrance to the country due to Executive Proclamation No. 9645—cannot bring constitutional claims on behalf of the affected foreign nationals. That is, the Government contends that Muslims denied entry must bring these claims themselves. While Justice Gorsuch and Chief Justice Roberts appeared intrigued by this jurisdictional attack, they also seemed satisfied by the challengers’ counsel’s response.

If that’s correct, then the Court will have to address the allegation that this travel ban was motivated by religious bigotry head-on. And in doing so, the Court will have to grapple with the string of damning hate that has poured forth from Trump’s mouth and fingers since he announced his campaign for the presidency in June 2015. The initial consensus was that the “gettable” conservative justices—Robert and Kennedy—showed little appetite for parsing the president’s campaign statements and using them to conclude that his order’s roots rest in rank bigotry. While that remains a fair assumption, the conclusion is all the more striking in light of an opinion handed down this week engaging in careful review of public officials’ religious commentary. And it further underscores the flimsy defense of the president floated by another member of the Court’s conservative block at oral argument that unfortunately may prove decisive. Continue reading

This Wolf Comes As A Wolf

A menacing wolf

Have you heard the shocking news? On Saturday, Michelle Wolf, a professional comedian hired to deliver “her truth-to-power style…and self-made, feminist edge” at the White House Correspondents’ Dinner, unapologetically labeled a mendacious, misogynistic, and perverted presidential administration as mendacious, misogynistic, and perverted. She told the press to stop booking Kellyanne Conway to lie to them and scolded them for enabling a dangerous executive for the sake of profits and access. She spoke the truth to her targets’ faces instead of hiding behind a self-serving, false appeasement. She dared to acknowledge that the media continues to ignore the poor African-American people of Flint—who remain without drinkable water for going on three years now—with nary a joke to parry the impact. Oh, the humanity!

The backlash was swift and predictable. Continue reading

Facebook Can’t “Like” This

Facebook’s lawyers are busy these days. On the heels of stories from the Observer and New York Times last month exposing how consulting firm Cambridge Analytica harvested the profile data of more than 50 million Facebook users, plaintiffs firms have jumped into the fray with four lawsuits against Facebook and its officers. And no wonder; the lurid details involved appear to have the makings of both a best-selling thriller and a legal nightmare for the tech giant. By posing as an academic researcher, Aleksandr Kogan, a Russian-American professor at the University of Cambridge, obtained millions of users’ detailed profile data without their consent but with Facebook’s knowledge. Kogan then funneled that information to Cambridge Analytica, a firm owned by the billionaire Mercer family, which used it to build psychological profiles of voters in aid of Donald Trump’s 2016 presidential campaign.

The resulting legal filings have alleged wide-ranging misconduct on Facebook’s part.  Continue reading

Report From The Court: The Justices Try To Take Trump Out Of Trump v. Hawaii

Protestors in front of the Supreme Court

The mood inside the Supreme Court today was grim. Not because the stakes were particularly weighty, though they were, or because the Court is bitterly divided, thought it certainly appeared to be, but because of the reason everyone was assembled on the Court’s last day for its most newsworthy case. On another day, in another context, review of an executive order restricting certain classes of aliens from entry into the United States might have warranted far less attention than the expedited briefing and accelerated hearing Trump v. Hawaii received.  This country’s immigration laws grant the president significant discretion over immigration, and the Court’s precedents have long warned against judicial intrusion into matters of national security. Yet, as the justices knew but only obliquely alluded to, the case was as much about the president himself as the order he signed. Continue reading

Check Your Attorney-Client Privilege

“Attorney-client privilege is dead!” recently lamented our president, a man long concerned about the procedural safeguards and civil liberties of marginalized criminal defendants. The responder-in-chief was referring, of course, to the no doubt startling news that his consigliere, fixer, business associate, marital rape defender, poll questioner, cigar smoking exhibitioner, and money launderer Michael Cohen’s files had been seized by the U.S. Attorney’s Office in Manhattan on a referral from the office of Special Counsel Robert Mueller. Continue reading

The Curse That Is Loving Baseball

Los Angeles Dodgers losing streak game log from 2017

Today is opening day in baseball, a moment for hope and promise for fans across the country. The preseason predictions may have rendered their verdict, but as we see each year, a 162-game season has other plans than simply confirming the overconfident understandings of our ordered minds. Even teams with the highest expectations must slog through six months of unknowable obstacles to reach the promised land.

It’s a particularly disorienting opening day for me as a long-time, unrequited fan of the Los Angeles Dodgers. I became a fan of the team a half-decade after their last championship in 1988. Although the Dodgers have generally been a strong, entertaining, competitive team over the last twenty-five years, it was not until last season that they succeeded in returning to the World Series. After a succession of playoff heartbreaks, the 2017 Dodgers won a league-best 104 games and ran through two rounds of National League playoffs to reach a decisive Game 7 of the Fall Classic. Although they lost that game and the sport’s highest honor to the Houston Astros, the team accomplished nearly every other milestone for which a fan could hope. For those wedded to a championship-or-bust mindset, the season was a letdown. But for me, it was a seven month odyssey of pure pleasure—sports at its absolute best. The Dodgers were the best team in all of baseball in the regular season, they won more games than any team in thirteen years, and at one point they won an astonishing 44 of 51 games. From start to finish, last year’s run was the greatest of my life. And yet, at the beginning of a new season, looking back on the last one, I’m forced to conclude that my most powerful memory of that time is the darkest.

From August 26th to September 11th, the Dodgers inexplicably lost 16 of 17 games. It was stupefying, confounding, unnerving, and ultimately meaningless. The team posted a sparkling 91-36 record in its first 127 games before the losing streak, recovered after it in time to win the National League West comfortably, and then shined in the playoffs, coming one game from the sport’s ultimate prize. It was the least consequential collapse in the history of baseball in every respect. And yet, I’m forced to admit, it was my defining baseball experience of 2017. Continue reading