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Justice Alito wants us to believe that everything is going great at the Supreme Court. And so it is - for big Republican donors


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By SEN. SHELDON WHITEHOUSE
PUBLISHED OCTOBER 14, 2021 6:00AM (EDT)

Justice Samuel Alito wants desperately for us to believe that everything is just fine at the Supreme Court. Indeed, in his view the court is a victim. 

Before an audience at Notre Dame on Sept. 30, Alito denounced "unprecedented efforts to intimidate the court." He aimed his outrage at the media, at leading legal academics, and at people like me who are concerned about, as he put it, the Supreme Court "deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view."   

The problem for Justice Alito's sense of grievance is that the evidence supports our concerns. Alito has participated in a pattern of decisions — like the court's recent "shadow docket" ruling suspending abortion rights in our second-biggest state — that deliver wins for big Republican donors. Americans' perception that the court lacks independence, and the court's related drop in approval, doesn't flow from some left-wing conspiracy. It's a recognition that the evidence shows a pattern whenever certain interests come before the court. 

How strong a pattern? During Chief Justice John Roberts' tenure, the Court has issued more than 80 partisan decisions, by either a 5-4 or 6-3 vote, involving big interests important to Republican Party major donors. Republican-appointed justices have handed wins to the donor interests in every single case. The decisions greenlit rampant voter suppression and bulk gerrymandering (Shelby County v. Holder and Husted v. Randolph Institute); closed courthouse doors to workers wronged by their employers (Epic Systems Corp. v. Lewis); unleashed floods of dark money to corrupt our politics and foul our democracy (Citizens United v. FEC and Americans for Prosperity Foundation v. Bonta); and more. Eighty to zero is a pattern so strong that it could serve as compelling evidence in a trial alleging bias and discrimination.

This pattern did not just happen. It is the fruit of a half-century-long operation by right-wing donors to win through the Supreme Court what they can't win through elected branches of government. In 1971, a corporate attorney from Virginia named Lewis Powell wrote a memo for the U.S. Chamber of Commerce laying out a game plan for corporations and right-wing ideologues to use "an activist-minded Supreme Court" as an "instrument for social, economic, and political change." (Within months, Powell himself would be appointed by Richard Nixon to the court to advance the plan from within. His memo was never disclosed to the Senate.)

Powerful interests have a long, sordid history of "regulatory capture." Volumes have been written on that history. For big donors, turning the techniques of regulatory capture to the Supreme Court was a short leap. Of course it can't be obvious, so the court-capture operation would obscure its influence using front groups and anonymous secret funding. 

The Federalist Society emerged as gatekeeper, monitoring Republican-appointed judges for allegiance to right-wing donor interests, while accepting gobs of anonymous donations. The Judicial Crisis Network and its offshoots sprang up as political attack dogs in the confirmation fights for Federalist Society-approved judges, funded by anonymous donations as big as $17 million. Other front groups groomed convenient plaintiffs to manufacture controversies to give the selected justices cases that would generate precedent favorable to donor interests. Secretly-funded groups also began to lobby the court in orchestrated flotillas — through so-called "friend of the court" briefs — signaling which cases are important to donor interests and advising judges which way the donors want them to rule. They have a perfect winning record.

 

All of this required boatloads of anonymous money; what people who study this clandestine activity call "dark money." The Washington Post has exposedhow the right-wing donor network spent upwards of $250 million in dark money on its judicial influence operation; testimony before my Senate Judiciary Courts Subcommittee has since upped that dark money figure to $400 million. Because the funding is covert, we do not know exactly who contributed that money or what interests they have before the court. But rarely do people spend $400 million for no reward.

The success of this operation is undeniable. And it is not legal conservatism at work. To reach the desired results, Republican justices often abandon the principles and doctrines of legal conservatism, like textualism and originalism. Take last term's Americans for Prosperity Foundation decision, which created sweeping First Amendment protections for the funders behind dark-money political groups, like the Koch-backed plaintiff in the case. As Justice Sonia Sotomayor pointed out in her dissent, the "decision discards decades of First Amendment jurisprudence" to produce a novel, activist creation in the law: constitutional protection for dark money. Good luck finding support for massive dark-money, special-interest spending in the debates at the Constitutional Convention.

Perhaps Justice Alito is so touchy because his fingerprints are all over this pattern of Republican judicial activism. Consider his decades-long judicial campaign against public sector unions, a prime political target of major Federalist Society donors like the Lynde and Harry Bradley Foundation. In a series of cases over a few short years (Knox v. SEIU Local 100, Harris v. Quinn, and Janus v. AFSCME), Alito invited successive challenges to a bedrock 40-year-old precedent protecting unions. Anti-labor front groups with financial ties to the Federalist Society and Bradley Foundation eagerly rushed cases to the court tailored to that invitation, and Alito delivered new First Amendment rights to strike the precedent and gut the unions.  Textualist or originalist principles were nowhere to be found in his opinion.

f Alito and the Republican majority on the Supreme Court want the public to believe the court is not a secretive political "cabal" (his word) doing the bidding of big donors who helped put them there, they should deal with the evidence. Explain the 80-0 donor win record. Disclose who's behind the dark-money briefs. Stop the special-interest fast lane around the "case or controversy" requirement. Report gifts and hospitality — not worse than the other branches of government do, but better. Take precedent seriously when it doesn't suit you, not just when it does. Ditto recusal. Put yourself under a code of ethics, like every other federal judge. And understand that you have fouled your nest, not us, and that the Supreme Court must now at least match every other political institution with a renaissance of transparency. Democracy demands it. And the Court That Dark Money Built has squandered the benefit of the doubt.

https://www.salon.com/2021/10/14/justice-alito-complains-but-the-evidence-is-clear-this-was-built-by-dark-money/

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The real divide in this country is not a vertical separation of left and right, it is a horizontal separation of the super elite from everyone else. The Best Americans own at least 52 Senators and six Supreme Court justices screened for compliance by their Federalist Society. 

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3 minutes ago, Sol Rosenberg said:

The real divide in this country is not a vertical separation of left and right, it is a horizontal separation of the super elite from everyone else. The Best Americans own at least 52 Senators and six Supreme Court justices screened for compliance by their Federalist Society. 

That's an excellent analysis, no wonder they are scared to death of taxation.

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I like that it's changed from an "orchestrated chorus" to an "orchestrated flotilla" of amici.

Weird that some of the Koch-$pon$ored plaintiffs don't create more outcry. For example, Kelo v New London was a Koch-$pon$ored assault on the American way. Fortunately, the forces of good and Pfizer prevailed, but it's still weird that the assault isn't treated seriously.

In another recent case, a Koch-$pon$ored heroin kingpin, Tyson Timbs, managed to hypnotize the entire court or something and won a unanimous victory over the asset looting programs set up by heroic drug warriors like our President. Again, the voices of condemnation are notably muted on that one.

I wonder why?

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The much-feared orchestrated chorus of amici is currently attacking vital government immunities.

Their efforts to subvert justice succeeded when the fourth amendment came up. Twice.

They haven't left the first amendment alone either. Twice.

Ironically, SCOTUS stood up to the chorus on the subject of operating a flotilla.

So many examples of the orchestrated chorus of amici subverting justice. So little condemnation. Just shameful!

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I'll try to ignore that Tom . . .  

In my experience, Notre Dame was a place of tolerance and open discussion - I used to take students there for an excellent undergrad conference. The Kellogg Center and the campus as a whole were very gracious hosts. 

Clearly, something is amiss at ND 

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8 hours ago, The_Real_XYZ said:

Meanwhile, the thousand year old LWNJ judges refuse to die until republicans can block their replacements.

I think Breyer showed he was past it by his last remarks. Term limits.

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In one of those terrible 5-4 cases, the big donors apparently didn't come up with enough dough for Justice Thomas.

TransUnion LLC v. Ramirez

Quote

Judgment: Reversed and remanded, 5-4, in an opinion by Justice Kavanaugh on June 25, 2021. Justice Thomas filed a dissenting opinion, in which Justices Breyer, Sotomayor and Kagan joined. Justice Kagan filed a dissenting opinion, in which Justices Breyer and Sotomayor joined.

Anyone else join me in thinking Thomas got it right?

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On 10/14/2021 at 11:20 PM, AJ Oliver said:

I'll try to ignore that Tom . . .  

In my experience, Notre Dame was a place of tolerance and open discussion - I used to take students there for an excellent undergrad conference. The Kellogg Center and the campus as a whole were very gracious hosts. 

Clearly, something is amiss at ND 

What has Notre Dame done to depart from its tradition of "tolerance and open discussion?". What should it do to fix it?

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On 10/14/2021 at 4:10 PM, badlatitude said:

Take last term's Americans for Prosperity Foundation decision, which created sweeping First Amendment protections for the funders behind dark-money political groups, like the Koch-backed plaintiff in the case.

It may not be too late to save the court.

In Brownback v King, one of those terrible Koch-$pon$ored plaintiffs lost in a unanimous decision.

Well, for now.

No one has really said what's so terrible about James King but there must be something.

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  • 2 weeks later...
On 10/14/2021 at 9:43 PM, Excoded Tom said:

I like that it's changed from an "orchestrated chorus" to an "orchestrated flotilla" of amici.

Armada of Amici has a better ring to it.

Quote

 

...

Americans for Prosperity Foundation v. Bonta provides a recent and extreme example of the “flotilla” phenomenon. Plaintiff Americans for Prosperity Foundation (AFPF), the 501(c)(3) arm of the Koch network’s right-wing 501(c)(4) political-advocacy group Americans for Prosperity, objected to a California state regulation that required 501(c)(4) nonprofits to confidentially disclose their largest donors.41 The nonprofits had to provide the state Attorney General with a copy of their IRS Form 990 Schedule B—information the organizations must already, of course, provide to the IRS.42 The case proceeded through the federal courts with little fanfare or media attention. But at the Supreme Court cert stage, a veritable armada of amici supporting AFPF barraged the Court, urging it to grant cert.

This was a highly coordinated effort made possible only by the money and connections of the Koch political enterprise. Atleast fifty-five of the cert-stage amici in support of the petitioner43 had taken money either from the Koch political network or from a Koch-linked44 anonymous account at DonorsTrust, an administrator of “donor-advised” funds that has been described as “the dark-money ATM of the
right.”45 Subsequently, at the merits stage, at least forty-five filers46 had apparent financial ties to the Koch network and/or DonorsTrust. Additionally, the Center for Media and Democracy found that eleven prominent right-wing groups gave close to $222 million to sixty-nine of the organizations filing amicus briefs in support of
AFPF.47

It is difficult—if not impossible—to credibly argue that such amici are independent of the plaintiff, because AFPF is itself a central political organization of the Koch network.48

...

 

He seems to be counting on non-readers, which I guess is wise policy.

The thing is, readers know that there were 22 cert-stage briefs and among the RWNJ brigade supporting the Petitioner were briefs like this one:

Brief amicus curiae of Council on American-Islamic Relations filed.

Yes, a few were joined by multiple groups and I'm not going to check but guess he's probably right that 55 of them are Koch-$pon$ored in some way or other. So what? It is difficult—if not impossible—to credibly argue that such amici as CAIR are Koch stooges.

At the merits stage, his complaint becomes more laughable. Even by counting all the parties that join a brief, the terrible, tainted ones are outnumbered by the briefs themselves. And this time, Koch $tooges include CAIR again, plus:

 

Brief amici curiae of American Civil Liberties Union, Inc., et al. filed. (joined by the NAACP Legal Defense Fund, among others)

OK, so

Quote

Why was the amicus flotilla in AFPF so large, outpacing those in cases involving national, high-stakes issues such as labor organizing and healthcare? Simply put, because the stakes for the donors behind AFPF could not have been higher. Indeed, the issue in AFPF was an existential one for the amicus machine: in deciding nonprofit donors’ alleged right to anonymity, the Court would directly impact the ability of dark-money donors to continue shaping judicial outcomes. In effect, the amicus briefs argued for a constitutional right to anonymous dark-money spending in our democracy.

Who knew that the ACLU, NAACP, and CAIR were such enemies of democracy and fans of Kochi$m?

 

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Toward the end of the armada article:

Quote

 

Critics of compelled disclosure claim that it violates First Amendment associational or speech rights, such as those at issue in NAACP v. Alabama ex rel. Patterson.161 In NAACP, the Supreme Court refused to allow compelled disclosure of the identities of NAACP members in the Deep South who faced significant threats to their physical safety during the Civil Rights Era.162 In AFPF v. Bonta, as I discussed in Part I above, the Court’s Republican-appointed majority presumptively extended the NAACP protections to all membership organizations, even those that experience no significant threats or burdens whatsoever.

Take the business network of the Chamber of Commerce, whose corporate members face no serious threat of reprisal for the public expression of their views, but which is capable of extracting significant benefits for its members via anonymous amicus lobbying. As one scholar has written, “applying NAACP v. Alabama’s holding in a formally symmetrical manner to the relatively powerful . . . without regard to context may undermine rather than affirm the values underlying that decision.”1

The balance between the public’s interest in transparency and organizations’ associational rights was already badly off-kilter in favor of dark money and anonymity. There is simply no public-safety comparison between Black citizens and civil-rights activists in the Jim Crow South, under the active abuse of a state government that often operated arm-in-arm with the Ku Klux Klan, and today’s elite, wealthy interests.

 

Hmm... Context is good. Here's some: The NAACP joined the Chamber of Commerce in supporting Kochi$m by joining the ACLU amicus brief.

They did it because physical safety is not the only reason for wanting anonymous expression. Same reason CAIR outlined in their briefs.

Anyone who wishes to disagree should probably start by outing yourself. Afraid you're going to be beaten up?

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Turning to the abortion cases coming up before SCOTUS,

Supreme Court is flooded with briefs as arguments on Texas abortion law approach

Heh. Flooded indeed. It's really a pretty small armada this time, compared to cases like APF above.

Only one of those dreaded "cert stage" amicus briefs was filed.

Darn gun nutters supporting abortion rights.

Oct 21 2021  Brief amicus curiae of Firearms Policy Coalition filed.
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On 10/14/2021 at 9:43 PM, Excoded Tom said:

For example, Kelo v New London was a Koch-$pon$ored assault on the American way. Fortunately, the forces of good and Pfizer prevailed, but it's still weird that the assault isn't treated seriously.

It's not just any example.

Kelo v New London was the first of these terrible Koch-$pon$ored ca$e$ to reach the Supreme Court. Disaster was narrowly averted, as the decision was 5-4.

I mentioned Bruce's Beach in the Kelo thread, but it deserves mention here too. Although the forces of Kochi$m lost in Kelo, the reasoning of O'Connor and Thomas seems to be continuing to afflict legislators and even California's Governor!

  

The Buyback and Eventual Return of Bruce's Beach Shows That Property Rights Are Human Rights

Quote

 

...

In her dissent in the U.S. Supreme Court's Kelo decision (allowing the buyback of a home to make way for a pharmaceutical plant), then-Justice Sandra Day O'Connor noted, "The beneficiaries are likely to be those citizens with disproportionate influence and power….As for the victims, the government now has license to transfer property from those with fewer resources to those with more."

We see with Bruce's Beach that the erosion of property rights falls the hardest on those with the least political power. Ironically, progressive politicians who rightly championed this compensatory legislation are the ones who have been most eager to give the government escalating power to buyback private property (not only through eminent domain but through regulation) in the name of the common good.

Yet, in the early 20th century, city officials viewed the removal of African Americans from white neighborhoods as something that advanced the "common good." As O'Connor realized, the best way to protect the least-powerful residents is to protect their property rights, so that individual owners can tell venal politicians and bigoted neighbors to pound sand.

...

 

 

 

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On 10/29/2021 at 6:04 AM, Excoded Tom said:

It's not just any example.

Kelo v New London was the first of these terrible Koch-$pon$ored ca$e$ to reach the Supreme Court. Disaster was narrowly averted, as the decision was 5-4.

I mentioned Bruce's Beach in the Kelo thread, but it deserves mention here too. Although the forces of Kochi$m lost in Kelo, the reasoning of O'Connor and Thomas seems to be continuing to afflict legislators and even California's Governor!

  

The Buyback and Eventual Return of Bruce's Beach Shows That Property Rights Are Human Rights

 

 

Fucking CATO bullshit. So appealing in principle, so appalling in effect. The distribution of income and power in the USA has gone off the tracks.

Hmmm. What is it that bothers me about the big picture?

 

dogballs 7.jpg

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15 hours ago, jocal505 said:

Fucking CATO bullshit. So appealing in principle, so appalling in effect. The distribution of income and power in the USA has gone off the tracks.

Hmmm. What is it that bothers me about the big picture?

You should be happy that Kelo lost and Pfizer won and the nutjobs' attempt to stop the distribution of power and income from Kelo to Pfizer was a failure. Why is this bad?

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17 minutes ago, Excoded Tom said:

You should be happy that Kelo lost and Pfizer won and the nutjobs' attempt to stop the distribution of power and income from Kelo to Pfizer was a failure. Why is this bad?

Because we see the skuzzy dogballs, plated in cheap chrome glitter. What do I win?

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On 10/30/2021 at 11:49 AM, jocal505 said:
On 10/29/2021 at 9:04 AM, Excoded Tom said:

It's not just any example.

Kelo v New London was the first of these terrible Koch-$pon$ored ca$e$ to reach the Supreme Court. Disaster was narrowly averted, as the decision was 5-4.

I mentioned Bruce's Beach in the Kelo thread, but it deserves mention here too. Although the forces of Kochi$m lost in Kelo, the reasoning of O'Connor and Thomas seems to be continuing to afflict legislators and even California's Governor!

  

The Buyback and Eventual Return of Bruce's Beach Shows That Property Rights Are Human Rights

 

 

Expand  Expand  

Fucking CATO bullshit. So appealing in principle, so appalling in effect.

So you don't think Bruce's Beach should have been returned to the family?

I think it's a pretty appealing thing in principle and in effect. The buyback never should have happened. Racism isn't a public purpose. But feel free to give me the opposing view, since you seem to be the only one stupid enough to try.

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2 hours ago, Excoded Tom said:

So you don't think Bruce's Beach should have been returned to the family?

I think it's a pretty appealing thing in principle and in effect. The buyback never should have happened. Racism isn't a public purpose. But feel free to give me the opposing view, since you seem to be the only one stupid enough to try.

Dogballs, my observation is that you are so "smart" that you can't find the problem with out-of-control dark money. Madison would have given Publius Johnson a potato peeler...with a STFU.

Your element is trashing democracy, Tom. It's scary shit...as you flash disco sparkles off your junk.

The Court’s disparate treatments of the crowdfunded, small-dollar-backed brief filed by the U.S. Alcohol Policy Alliance and the wealthy, repeat-player amici who routinely file anonymously funded briefs is both troubling and telling. (...) 

 A rule that forces disclosure of these donors, but not the large and anonymous corporate funders of sophisticated repeat-players like the Chamber of Commerce, does not “strike a balance” at all.149

 

 

 

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  • 3 weeks later...
On 11/1/2021 at 9:56 AM, jocal505 said:

Your element is trashing democracy, Tom. It's scary shit.

Is that so?

What's wrong with these special interest amicus briefs?

Brief amicus curiae of Council on American-Islamic Relations filed.

Brief amici curiae of American Civil Liberties Union, Inc., et al. filed. (joined by the NAACP Legal Defense Fund, among others)

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Whitehouse Whining Continues
 

Quote

 

...

The trend is only continuing, according to Whitehouse. What he finds most troubling is an increase in the number of legal briefs, known as amicus briefs, that are filed without any financial disclosure to convince the justices to rule a certain way.

...

 

There's no financial disclosure, huh?

He can fool non-readers, I suppose, but not me.

  

On 6/3/2019 at 5:17 AM, Seriatim Tom said:

Before getting to the brief, the table of authorities signals trouble ahead...
 

Quote

 

An Act for preventing Suppressing & punishing the Conspiracy & Insurrection of Negroes & other Slaves (1712), Acts of Assembly Passed in the Province of New-York, from 1691 to 1718 141 (John Baskett ed. 1719).................... 

An Act for the more Effectual Preventing & Punishing the Conspiracy & Insurrection of Negro & other Slaves (1730)...............

 

Expand  Expand  

The required note on interests and funding foreshadows more trouble...

Quote

No counsel for a party authored this brief in whole or inpart nor did such counsel or any party make a monetarycontribution to fund this brief. Preparation and submission of this brief was funded in part by the NRA Freedom Action Foundation. Petitioners and respondents gave blanket consent for the filing of amicus curiae briefs in this case.

It's unlikely that any other civil rights group would fund minorities who seek to exercise this particular right, so good for the NRA.

How did I know about the NRA funding? Because it was disclosed as required, contrary to Whitehouse's BS.

 

 

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10 hours ago, Seriatim Tom said:

There's no financial disclosure, huh?

He can fool non-readers, I suppose, but not me.

I don't think you read it. 

If you read this, at the keen level of the National Merit Scholarship readers,  why are you leaving the pertinent (meaning juicy) parts out? Your content is sheer propagnda. It doesn't display a good reader--it displays a twisted presentation, a lack of integrity. IMO.

Whitehouse has honor, and credibility. If you had either, you would not have presented this distortion.

Dark money sucks, Dogballs.

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3 hours ago, jocal505 said:

Dark money sucks

An outdated talking point.

From the article that I doubt you read:

Quote

Democrats actually drew in more funding from dark money than Republicans in the 2020 election cycle, according to OpenSecrets.

You're going to have to update your talking points to be TeamD-friendly again.

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12 hours ago, Seriatim Tom said:

An outdated talking point.

From the article that I doubt you read:

You're going to have to update your talking points to be TeamD-friendly again.

 

RESEARCH BY TOM FUCKING RAY. WTF?

This sampling base is poor. (Dogballs poor.) A one-year examination is NOT UP TO PAR WITH THE NATIONAL MERIT SCHOLARSHIP talent. Hmmm, your libertarian ideals are dominating your abilities. 

Let's hear your report on dark money over the last twenty years. Whitehouse has presented his, eh?

 

Whitehouse and Dogballs walk into a bar. Tom Ray orders himself a Jim Crow. For small talk, Tom Ray tosses out a little race-baiting...

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