SCOTUS Intent On Entrenching GOP Power
The conservative bloc of the Supreme Court seems determined to break our democracy in order to ensure that the Republican extremists who put them there will remain in power even without the support of the majority of voters. And they also seem determined that those that they’ve essentially put in power should be able to wield their often undeserved political clout for as much partisan advantage as they care to.
I have already written about how the recent Rucho decision that ruled that extreme partisan gerrymandering was constitutional, with the five conservative justices providing the majority, will lead to a 21st century version of Jim Crow where African Americans are essentially disenfranchised under the pretext they are predominantly Democratic votes. It will also lead red states that haven’t implemented such extreme gerrymanders to do so.
The decision on the census, while supposedly preventing the citizenship question from being added, was only based on the fact that the Trump administration’s pretext for adding the question was intentionally fraudulent and four of the conservatives did not even care about that. The Court did not rule on the actual constitutionality of adding the question, leaving that question open for the Trump administration to come back with a more palatable excuse to please John Roberts, which they apparently intend to do despite having continually lied to the courts that July 1 was the drop-dead deadline for printing the census and mountains of evidence as well as Trump’s own admission that it will be used for redistricting. Essentially Roberts is pleading with the administration to come up with a better pretext for adding the question much as he provided the template for finally getting the Muslim ban and the ban on transgender troops ruled constitutional. And whatever ultimately happens with the census, there are already Republican states who will be basing their redistricting on citizens not population after 2020, cases that will ultimately end up in front of the Court as well.
Lastly, in one of the final acts of this term, the Court surprisingly agreed to hear the appeal from the two Chris Christie aides who were convicted in the Bridgegate scandal. For those who might not remember, the scandal involved closing down lanes on the George Washington Bridge in order to clog traffic in the town of Fort Lee simply because the Democratic mayor of that town had not endorsed Christie’s gubernatorial re-election campaign. The pretext for those lane closures, however, was that it was simply a traffic study and the resulting traffic problems in Fort Lee endangered public safety by extending the response times of police, medical, and fire services. The convictions of the two Christie aides were based on mail and wire fraud offenses that fall under the rubric of “right to control” that consider it a crime to use a controlled asset and then lie about its use. It is the same principle under which those accused of selling college admission places are being charged.
The fact that the Court surprisingly agreed to hear this appeal indicates that there is a bloc on the Court that is interested in further gutting the legal restrictions against political malfeasance and corruption. In 2016, the Court, in an admittedly unanimous decision, voided the corruption conviction of former Virginia governor Bob McDonnell on the basis that the official acts that the governor supposedly engaged in on behalf of a businessman who provided $175,000 in loans and gifts to the governor and his wife basically constituted normal constituent services and nothing more. According to the Court, setting up meetings for the businessman and allowing him to use the governor’s mansion to launch one of his products did not amount to the governor taking an official act to aid his benefactor, something that the bribery statute requires. According to Roberts, who wrote the majority opinion, “Setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.'” Roberts went on to narrow the ability of prosecutors further by interpreting the law to mean that the public official has to take an action “of the same stripe as a lawsuit before a court, a determination before an agency or a hearing before a committee” involving a “question, matter, cause, suit, proceeding or controversy” in order for a successful corruption prosecution. In other words, there must be a specific and well-defined quid pro quo required for a successful prosecution, a problem that Mueller similarly confronted in his conspiracy investigation.
The issue in the Bridgegate case is that there was really no money involved, nor any “question, matter, cause, suit, proceeding or controversy” that involved the state. The lane closures were simply political retribution, largely at the public’s expense. As one former prosecutor noted, “What’s always marked this case from being a little different than standard corruption cases was that this wasn’t about personal gain, or at least personal gain in a monetary sense. If money isn’t nakedly involved, you end up having more complex and contestable liability theories.” It appears that the Court is now willing to overturn these convictions, considering them purely normal political actions, not corrupt acts by public officials, and either ignoring or accepting the legality of lying about the true motive.
The implications of such a decision, if it comes, is quite frightening, especially if it is handed down early in the Court’s next term. The lane closures were not undertaken for the common good. There was no underlying rationale for them. They were simply designed to punish the constituents of the Democratic mayor in the hopes that he would be blamed for the traffic in their city and used state resources to accomplish that end. In effect, it was a collective punishment for not endorsing the Republican governor hidden behind a bogus excuse of a traffic study. If that kind of behavior is now legal, one can just imagine the shenanigans that Democrats in red states will face going into the 2020 election. Will cutting services or refusing to fix the roads in Democratic districts be considered just playing hardball politics, even when the reasons for such deficiencies are outright lies? Will purposely endangering the lives of Democratic constituents now be considered just politics? And, of course, Democrats could turn around and do the same to Republicans.
Moreover, in Bridgegate, if it hadn’t been for the intervention of the Democratic appointee to the Port Authority blowing the whistle on the traffic closures, Christie very well may have gotten away with using state resources for purely partisan activity. With the abilities of local press increasingly shrinking under economic stress, who is going to expose the lies that hide these partisan abuses. Of course, the Supreme Court seems to care nothing for lies, only to make sure they are told ones that they find acceptable as they have done with the Muslim ban, the transgender ban, and now quite possibly with the census question.
This line of reasoning that politics trumps all is virtually the same excuse that William Barr used to whitewash Mueller’s charges of obstruction of justice regarding Trump’s order to fire the Special Counsel. According to Barr, “If the President is being falsely accused — and the evidence now suggests that the accusations against him were false — and he knew they were false, and he felt that this investigation was unfair, propelled by his political opponents, and was hampering his ability to govern, that is not a corrupt motive for replacing an independent counsel”. Similar logic also drove the limitations on state and local tax deductions in the GOP tax bill, which was basically an attempt to hurt constituents in predominantly Democratic high property tax areas.
As the senior counsel at the Brennan Center for Justice noted regarding the Bridgegate appeal, “One does wonder, implicitly, how the Supreme Court got to this extraordinarily cynical view of politics and public service where this dodgy behavior is just part and parcel of the political game”. And, once again, assuming the Bridgegate convictions are overturned, the Supreme Court would be taking steps to further entrench GOP political power.