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2020 u s presidential election
Chief Justice Roberts Ignores Republican Efforts to Shred the Rule of Law
The GOP’s war on judges and juries, along with Justices Thomas’ and Alito’s naked partisanship, are shaking the foundations of the Constitution and American democracy.
Jun 06, 2024
The rule of law in the United States may well succumb under the relentless attacks of the convicted felon Donald Trump.
Trump and his Republican abettors are making a giant effort to destroy America’s faith that our judges, jurors, and courts are instruments of justice. The threat is aggravated by a Supreme Court which, instead of modeling judicial integrity, contributes to rising public skepticism by ignoring its own ethical implosion and thwarting efforts to bring Trump to trial for the crimes for which he’s been indicted.
The attacks on the rule of law are all intended to protect Trump and his accomplices from the legal consequences of their attempt to overthrow a free and fair election to steal the presidency through fraudulent and violent methods.
Insofar as the Supreme Court refuses to allow juries to even hear the evidence on whether Trump is innocent or guilty of such charged crimes, the court is also rejecting a government of laws in favor of a government of Trump.
On one front, essentially all Republican politicians now insist that Donald Trump can never be found guilty of any crime. Just as Trumpians take the de facto view that an election is only fair if Trump wins, so they now maintain a trial is only fair if Trump is acquitted. Practical translation: Trump is above the law.
On a second front, Trump’s ethically compromised allies in the Supreme Court have conveniently delayed his other criminal trials while they consider absurd legal theories designed to erase the criminal charges against him. The court’s right-wing majority could well decide to bestow impunity for the attack on the Capitol and the conspiracy to negate the Electoral College vote. Two justices who have signaled their support for the insurrection insist on sitting for these cases, undermining confidence in the courts and in the rule of law by their obvious bias.
Month after month, the criminal Trump has smeared every participant in the judicial process with lies and threats, in a vitriolic effort to intimidate judges, prosecutors, and jurors and to persuade the public that our courts are illegitimate.
Now, with the unanimous jury verdicts of guilt in the first of Trump’s four criminal cases, the Republican swarm has gone into a feeding frenzy.
Their goal: eradicating the very notion that their Great Leader can be subject to the law. Their methods: delegitimize the judicial system; menace everyone in the apparatus of law enforcement; and insinuate a violent response is needed.
Trump’s followers have taken up the call. MAGA threats flood social media, and nearly everyone involved in his prosecutions have been threatened.
“Someone in NY with nothing to lose needs to take care of [trial judge] Merchan,” proposes one of Trump’s acolytes. “Judge needs a hatchet to the face,” says another. “I hope every juror is doxxed and they pay for what they have done,” yet another writes on Trump’s social media platform. “1,000,000 men (armed) need to go to Washington and hang everyone.”
Political violence commonly follows from Trump’s prompts. But even when it doesn’t, judges, jurors, and their family members live in fear. They are suffering because they worked to ensure that we are a society in which conflicts are resolved through courts and law, not vigilante savagery.
In this moment of crisis, the chief justice of the United States should be a champion of the rule of law, explaining that an independent judicial system is essential to a democracy and defending the integrity of the judge and jurors in Trump’s trial.
The chief justice should denounce the reckless GOP claims that the courts are “corrupt,” “rigged,” and “politicized,” and that President Joe Biden organized a giant witch hunt to silence Trump—all claims for which there is zero evidence. Above all, the chief justice should rebuke the calls for violence, explicit or tacit.
Chief Justice John Roberts actual response? Silence.
When the Republican Speaker of the House Mike Johnson suggests that his personal friends on the Supreme Court will surely “step in” to overturn the verdict, Chief Justice Roberts says not one word about the feverish, baseless attacks on the judicial branch of government.
When GOP House Judiciary Committee Chairman Jim Jordan demands the prosecutors in Trump’s case appear at a hearing so he can berate them for the supposed “political prosecution” of Donald Trump, the chief justice ignores this direct assault on the separation of powers and the rule of law.
The chief justice did find time to try to deflect attention from the ethical calamity enveloping the Supreme Court. He was forced to because Justice Samuel Alito has joined Justice Clarence Thomas in shamelessly flouting long-standing canons of judicial ethics.
Justice Thomas simply ignores the fact that his wife Ginni participated in the attempt to overthrow the 2020 election, an attempt that is about to come before the Supreme Court. No one can doubt that a judge in his position—if he participates in the case—might rule in favor of the insurgents in order to protect his wife from potential liability. That is why recusing himself is obviously required. But Thomas won’t.
Justice Alito’s effort to evade responsibility for open political partisanship is still less plausible.
No, Justice Alito, you cannot make the issue go away by claiming it was your wife alone who flew the flag of insurrection and you had nothing to do with it. When you live in a household with someone else, your partner does not display flags on your joint home unless the symbol represents both of your views. Especially when you’re a Supreme Court justice, whose manifest impartiality is a bedrock necessity. If that was not immediately obvious to her, then you tell her so and the flags come down.
In reality, blaming his wife was just an afterthought to give Alito a measure of deniability.
Since Justice Alito is not a total moron and since he does not live on Mars, he is also perfectly aware that Trump and his allies brought 60 lawsuits challenging the 2020 election, and that all of the cases—including cases presided over by many Trump-appointed judges—found no evidence of widespread fraud, no evidence the election was stolen. Which is to say: Justice Alito knows the entire “stop the steal” movement rests on a lie.
This means, too, that Justice Alito is personally aware that the flag flown at his home stands for a falsehood, one that threatens American constitutional democracy. Plainly, he cannot sit as an impartial judge of claims involving individuals who are charged with trying to overthrow the election based on that lie, when he has himself chosen to embrace the lie.
The chief justice’s response to Alito’s and Thomas’s refusal to recuse themselves: a shrug of his shoulders. Each justice makes his or her own decision on what is required by the Supreme Court’s belatedly adopted code of judicial ethics, says Roberts. Nothing more to say.
When Senate Judiciary Committee members invited him to discuss judicial ethics with them, Roberts refused, citing high principles. “Separation of powers concerns and the importance of preserving judicial independence counsel against such appearances.”
But the chief justice got it backwards.
The constitutional principle of the “separation of powers” among the legislative, executive, and judicial branches of government goes hand in hand with the related constitutional principle of “checks and balances.” This is the theory embraced by the Founding Fathers that representative government and the rule of law are protected when each branch of government is restrained by the powers of the other branches.
Under our Constitution, Congress—the legislative branch—was intended to possess powers to constrain and guide the judicial branch as well as the executive branch. Considering effective rules of ethics when the Supreme Court shuts its eyes to ethical problems is plainly within the congressional purview.
The judicial branch does have a duty to defend its independence, and it includes a duty to police assertions of power by those who would undermine it. Power outside the bounds of law, power without accountability, power that defies the will of the people, as expressed in free and fair elections, is the ultimate threat to the rule of law.
Founding Father John Adams famously urged in 1774 that ours be “a government of laws, and not of men.” Republicans who refuse to encompass the possibility of Trump being held responsible for criminal acts are saying that Donald Trump’s will must come first—that Trump’s wish to falsify business records, to possess government documents that don’t belong to him, to hold office after losing an election, to conspire to negate the voting rights of millions should supersede the laws that make such actions illegal. They are demanding we end our government of laws and substitute a government of Donald Trump.
Insofar as the Supreme Court refuses to allow juries to even hear the evidence on whether Trump is innocent or guilty of such charged crimes, the court is also rejecting a government of laws in favor of a government of Trump.
Before German democracy was destroyed in 1933, the Nazis and other right-wing extremists repeatedly engaged in political violence. Between 1919 and 1923, for example, rightists assassinated 400 political figures. Adolf Hitler himself attempted to overthrow the government by violence in 1923.
The German judiciary winked at these crimes, giving light sentences for grave acts of violence and for treasonous efforts to overthrow German’s democracy. The judicial failure to uphold the rule of law contributed to the destruction of the pre-Nazi democratic republic.
Will Chief Justice Roberts’ right-wing majority and the only partly Trumpified federal judiciary defend the rule of law or collaborate in its destruction? The jury, as they say, is out.
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Fighting Back Against Texas’s Voter Suppression Law
While SB1 is one of many antidemocracy laws enacted by 19 states in the year after the 2020 election, it stands out for its sheer number of restrictive and discriminatory provisions, which largely target Latino and Black voters.
Sep 17, 2023
Trial began Monday in a major federal lawsuit challenging a wide-ranging and discriminatory voter suppression law Texas enacted in 2021. The Brennan Center, the Mexican American Legal Defense and Educational Fund, and our other co-counsel represent a wide swath of Texans, including election administrators, community groups, civil rights and voting organizations, and faith-based groups. Over the course of the trial, we will show how Senate Bill 1 violates the Constitution, the Voting Rights Act, and the Americans with Disabilities Act.
While SB1 is one of many antidemocracy laws enacted by 19 states in the year after the 2020 election, it stands out for its sheer number of restrictive and discriminatory provisions, which largely target Latino and Black voters. This is likely the only challenge to such an extensive restrictive voting law that will go to trial between now and the 2024 election.
Among its host of restrictive provisions, the law establishes onerous new rules for voting by mail and curbs voter outreach activities. It also hinders voting assistance for people with language barriers or disabilities and restricts election officials’ and judges’ ability to protect voters from harassment by poll watchers. Like the dozens of restrictive state voting laws that have been enacted nationwide in the last three years, SB1’s proponents claim that it is intended to fight voter fraud. Indeed, its myriad provisions appear to respond directly to baseless claims peddled by Donald Trump and his fellow election deniers about the security of mail-in voting and election administration.
In a state that was already the toughest in the nation to register and vote, Texans now have an even harder time staying on the voter rolls, casting their ballots, and ensuring their ballots are counted.
Yet Texas has never found evidence of widespread fraud—and not for lack of trying. Without the pretext of making elections more secure, SB1 is simply an unconstitutional effort to suppress eligible voters in marginalized communities. It seems no coincidence that after people of color surged in turnout in Texas’s 2018 and 2020 elections, the legislature passed a law that restricts methods of voting favored by Black and Latino voters and impairs voter assistance to those with limited English proficiency or limited literacy.
The plaintiffs in the case, LUPE v. Texas, can attest to the various ways SB1 has created obstacles to the ballot box that infringe on the constitutional right to vote. Voters of color have been disproportionately impacted by these burdens, violating their right to equal protection, the 15th Amendment’s protection against race-based disenfranchisement, and the Voting Rights Act. Our plaintiffs’ anecdotal experiences are backed by state voting records in the wake of the law’s enactment. Brennan Center research shows that just a single provision—which has recently been blocked by a judge—led to massive disenfranchisement with major racial disparities in Texas’s 2022 primaries.
The law’s new rules for mail-in voting required people to write the last four digits of their driver’s license number or social security number on their mail ballot application and mail ballot envelope. Officials had to reject an application or ballot if the number provided didn’t match the number on file in a voter’s registration record, even if that person was eligible to vote. These mismatches weren’t always the result of someone writing the number incorrectly but rather providing a correct number that didn’t coincide with the ID they used when they registered to vote—which could have been more than a decade ago. Tens of thousands of applications and mail ballots were tossed solely for having a missing or mismatched ID number, and nonwhite voters were at least 30% more likely than white voters to have their application or mail ballot rejected. A significant portion of those prevented from voting by mail ultimately didn’t vote at all.
Similarly, the law curtails the ability of people with disabilities or with limited English or literacy skills to get help voting, denying them the equal voting access and assistance they’re entitled to under the Americans with Disabilities Act and the Voting Rights Act. In particular, SB1 imposes new requirements and penalties for voter assisters that have deterred volunteers from aiding voters at the polls. It also makes it a crime to compensate or receive compensation for helping people vote by mail, which prohibits civic organizations from supporting community members who have trouble filling out the forms. Several witnesses will speak to how these provisions made it difficult for them to secure the help they needed to vote in the 2022 election.
Voters aren’t the only ones struggling under SB1. The law also targets election officials and poll workers, who are already facing a torrent of threats, harassment, and abuse. One provision makes it a crime for poll workers to “take any action” that would make a partisan poll watcher’s observation “not reasonably effective.” This unconstitutionally vague directive gives poll workers no clear sense of what they can and can’t do to stop poll watchers from harassing or intimidating voters, leaving poll workers fearful of being prosecuted just for doing their jobs. In the face of this uncertainty, some experienced poll workers have declined to sign up for future elections.
The heavy burdens that Texas’s law imposes at every stage of voting are becoming increasingly apparent. In a state that was already the toughest in the nation to register and vote, Texans now have an even harder time staying on the voter rolls, casting their ballots, and ensuring their ballots are counted. And in the two years since SB1’s enactment, state legislators around the country have continued to push legislation aimed at restricting voting access for Black, Latino, and vulnerable voters and making elections more susceptible to partisan meddling. Leaving these unconstitutional voter suppression measures unchallenged can only serve to spur further attacks on the freedom to vote in Texas and beyond.
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NYC Pension Funds and State of Oregon Sue Fox Over Election Lies
"Defendants chose to invite robust defamation claims, with potentially huge financial liability and potentially larger business repercussions, rather than disappoint viewers of Fox News," the lawsuit reads in part.
Sep 13, 2023
The state of Oregon and New York City's pension funds filed a lawsuit against Fox Corporation Tuesday, arguing that the company allowed its Fox News channel to air falsehoods surrounding the 2020 election that put shareholders' investments at risk.
The lawsuit, which was filed in the Delaware Court of Chancery, is the most important shareholder action against the company since it settled a defamation suit for a record $787.5 million with Dominion Voting Systems in April. It also comes as experts had long warned the corporation it was leaving itself vulnerable to exactly these kinds of lawsuits by spreading lies that could lead to defamation claims, CNN reported.
"The board of Fox Corporation took a massive risk in pursuing profits by perpetuating and peddling known falsehoods," Oregon Attorney General Ellen Rosenblum said in a statement. "The directors' choices exposed themselves and the company to liability and exposed their shareholders to significant risks. That is the crux of our lawsuit, and we look forward to making our case in court."
"Fox's board of directors has blatantly disregarded the need for journalistic standards and failed to put safeguards in place despite having a business model that invites defamation litigation."
In the aftermath of the 2020 presidential election, both guests and hosts on Fox News repeated the false claim that former President Donald Trump had truly won the election and circulated conspiracy theories justifying this view, such as the lie that Dominion voting machines had swapped Trump votes to votes for President Joe Biden. The lawsuit argues that by catering to the desires of pro-Trump viewers, it failed in its duty to shareholders.
"Defendants chose to invite robust defamation claims, with potentially huge financial liability and potentially larger business repercussions, rather than disappoint viewers of Fox News," the lawsuit reads in part, according to The Associated Press.
Both New York City's pension funds and the state of Oregon have significant investments in Fox Corporation. The city pension funds had $28.1 million worth of shares at the end of July, while the state of Oregon had shares worth $5.2 million as of August 31, its Department of Justice said.
Neither plaintiff has specified an amount of damages, but New York City Comptroller and pension fund manager Brad Lander toldThe New York Times the city needed to "make the shareholders whole."
"Fox's board of directors has blatantly disregarded the need for journalistic standards and failed to put safeguards in place despite having a business model that invites defamation litigation," Lander said in a statement reported by CNN. "A lack of journalistic standards and a proper strategy to mitigate defamation has clearly harmed Fox's reputation and threatens their bottom line and long-term profitability."
Fox leadership did not comment to any major outlets on the lawsuit.
In addition to the Dominion suit, Fox has faced several other defamation claims, including an upcoming $2.7 billion lawsuit from election technology company Smartmatic and another from Ray Epps, a man from Arizona at the center of a conspiracy theory alleging he ran an FBI plan to instigate the riots at the Capitol on January 6, 2021.
Some groups argue that Fox News should face consequences beyond lawsuits. On July 3, the Media and Democracy project filed a petition with the Federal Communications Commission (FCC) to not renew the broadcast license for FOX 29 Philadelphia (WTXF-TV).
"As an FCC broadcast licensee FOX is bound to broadcast in the public interest, convenience, and necessity," the petitioners wrote. "Instead, it has repeatedly aired false information about election fraud, sowing discord in the country and contributing to harmful and dangerous acts on January 6, 2021."
Media experts and activists Steve Macek and Mitchell Szczepanczyk argued in a column that appeared at Common Dreams last week that the petition had merit.
"Although stripping an established TV station of its broadcast license may seem like an extreme measure," they said, "the Fox Corporation's record of malfeasance and its repeated betrayal of the public trust justifies the action in this case."
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