#Supreme Court adopts code of conduct

[mudwerks]

the picture of unethical conduct - right there

[mostlysignssomeportents]

Red-teaming the SCOTUS code of conduct

Tomorrow (November 18) at 1PM, I'll be in Concord, NH at Gibson's Books, presenting my new novel The Lost Cause, a preapocalyptic tale of hope in the climate emergency.

On Monday (November 20), I'm at the Simsbury, CT Public Library at 7PM

Last April, Propublica's Joshua Kaplan, Justin Elliott and Alex Mierjeski dropped a bombshell: Supreme Court Justice Clarence Thomas had been showered in high-ticket "gifts" by billionaire ideologue Harlan Crow, who subsequently benefited from Thomas's rulings in the court:

https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow

This was just the beginning: in the coming days and weeks, more and more of Thomas's corruption came to light, everything from the fact that his mother's home had been bought by Crow, to the fact that Thomas's adoptive son went to a fancy private school on Crow's dime:

https://www.propublica.org/article/clarence-thomas-harlan-crow-private-school-tuition-scotus

The news was explosive and not merely because of the corruption it revealed in the country's highest court. The credibility of the court itself was at its lowest ebb in living memory, thanks to the two judges who occupied stolen seats – Kavanaugh and Coney Barrett. One of those judges – Kavanaugh – is a credibly accused rapist. Thomas is also a credibly accused sexual abuser:

https://www.politico.com/news/magazine/2021/10/01/30-years-after-her-testimony-anita-hill-still-wants-something-from-joe-biden-514884

Then, this illegitimate court went on to deliver a string of upsets to long-settled law, culminating in the Dobbs decision, which triggered state laws that force small children to bear their rapists' babies:

https://www.nytimes.com/2022/06/09/health/abortion-bans-rape-incest.html

That was the context for the Thomas bribery scandal, which was swiftly joined by another bribery scandal, involving Samuel Alito's improper acceptance of valuable gifts from Paul Singer, another billionaire who brought business before the court:

https://www.propublica.org/article/samuel-alito-luxury-fishing-trip-paul-singer-scotus-supreme-court

This string of scandals and outrages naturally prompted public curiosity about the Supreme Court's ethical standards, and that triggered fresh waves of incredulous outrage when we all found out that the Supreme Court doesn't have any:

https://www.poynter.org/fact-checking/2023/why-doesnt-the-supreme-court-have-a-formal-code-of-ethics/

When Congress made tentative noises about providing minor checks and balances on the court, the justices erupted in outrage, telling Congress to go fuck itself:

https://int.nyt.com/data/documenttools/supreme-court-ethics-durbin/cf67ef8450ea024d/full.pdf

Chief Justice Roberts went on whatever the opposite of a charm-offensive is called (an "offense offensive?"), a media tour whose key message to the American people was "STFU, you're hurting our feelings":

https://news.bloomberglaw.com/us-law-week/roberts-defends-high-court-against-attacks-on-its-legitimacy

To the shock of no one except billionaires and Supreme Court justices inhabiting the splendid isolation from societal norms that is the privilege of life tenure, America didn't like this. The Supreme Court's credibility plummeted. A large supermajority of Americans – 79%! – now support age limits for Supreme Court justices:

https://pluralistic.net/2023/10/18/the-people-no/#tell-ya-what-i-want-what-i-really-really-want

Support for packing the Supreme Court is at an historic high and gaining ground, now sitting neck-and-neck with opposition at 46% in favor/51% opposed. Among under-30s, there's a healthy majority (58%) in favor of appointing more SCOTUS justices.

As Roberts' wounded bleats reveal, SCOTUS is very sensitive to its plummeting legitimacy. After all, the court doesn't have an army, nor does it have a police force. Supreme Court rulings only matter to the extent that the American people accept them as legitimate and obey them. Transformational presidents like Lincoln and FDR have waged successful wars against the Supreme Court, sidelining its authority and turning it into an unimportant rump institution for years afterward:

https://pluralistic.net/2023/05/26/mint-the-coin-etc-etc/#blitz-em

Now the Supremes are working their way through the (mythological but convenient) five stages of grief. Having passed through Denial and Anger, they've arrived at Bargaining, with the publication of the court's first "code" "of" "conduct":

https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf

It's…not good. As Max Moran writes for The American Prospect and The Revolving Door Project, the proposed code amounts to "security theater," a set of trivially bypassed strictures that would not have prevented any of the scandals to date and will permit far worse in the years to come:

https://prospect.org/justice/2023-11-17-supreme-court-objectivity-theater/

The security framing is a very useful tool for evaluating the Supremes' proposal. The purpose of a code of conduct isn't merely to prevent people from accidentally misstepping – it's to prevent malicious parties from corrupting the judicial process. To evaluate the code, we should red team it: imagine what harms a corrupt judge or a corrupting billionaire would be able to effect while staying within the bounds the code sets.

Seen in that light, the code is wildly defective and absolutely not fit for purpose. Its most glaring defect is found in the nature of its edicts – they are almost all optional. The word "should" appears 53 times in the document, while "must" appears just six times:

https://ballsandstrikes.org/ethics-accountability/supreme-court-code-of-conduct-hilariously-fake/

Of those six "musts," two are not pertinent to ethical questions (they pertain to the requirement for a justice to get prior approval before getting paid for teaching gigs).

When the code of conduct was rolled out, the court and its apologists pointed out that it was modeled on the ethical guidelines that bind lower courts. In the wake of the Thomas revelations, these guidelines were a useful benchmark to measure Thomas's conduct against. The fact that other federal judges would have been severely sanctioned or even fired if they had engaged in the same conduct as Thomas was a powerful argument that Thomas had overstepped the bounds of ethical conduct.

But as Bloomberg Law discovered when they compared the lower courts' codes to the Supremes' draft, the Supremes have gone through those lower court codes and systematically cut nearly every mention of "enforce" from their own draft. They also cut the requirement to "take appropriate action" if a violation is reported.

If you are a bad judge or a bad donor, all of this is good news. Nearly everything that it condemns is merely optional, which means that if a judge can be convinced to ignore a rule, they won't have violated the code. What's more, even widespread rulebreaking doesn't trigger an investigation. That's a very weak security measure indeed.

But it gets worse. The Supremes' code also omit key definitions found in the codes that bind the lower courts. The most important definition to be cut is for "political organization," which the lower courts define expansively as both parties and "entit[ies] whose principal purpose is to advocate for or against political candidates or parties." That definition captures "nonprofits, think tanks, lobbying firms, trade associations, grassroots groups" – the whole panoply of organizations whom federal judges must maintain an arm's length distance from in order to preserve their objectivity. Federal judges may not lead, speak at or donate to these organizations.

By omitting this definition, the Supremes open the door to involvement with precisely the kinds of PACs, thinktanks and other influence organizations funded by the billionaires who have benefited so handsomely from the judges' rulings.

What's more, the Supremes carve out an explicit exemption for speaking to "nonprofits, think tanks, lobbying firms, trade associations, grassroots groups," and to serving as a director, trustee or officer of "a nonprofit organization devoted to the law, the legal system, or the administration of justice and may assist such an organization in the management and investment of funds."

As Moran points out, this exemption would cover – among other institutions – the far-right Federalist Society, which satisfies all those criteria. That means a Supreme Court justice could sit on the board and raise funds for the FedSoc without raising any issues with this code – not even one of those squishy "shoulds." Nothing in this code would stop Clarence Thomas or Thomas Alito from accepting lavish gifts, private jet rides, or luxury tour buses from billionaires with business before the court:

https://abcnews.go.com/US/wireStory/justice-thomas-267000-loan-rv-forgiven-senate-democrats-104303972

As Moran writes, these definitional vacuums are a well-understood class of weaknesses in ethics codes. Congress gets a lot of mileage out of this ruse – for example, by narrowly defining "lobbying" to exclude things that most people understand that term to mean, Congress engage in improperly close relations with lobbyists while still maintaining that they hardly ever talk to a lobbyist at all:

https://www.politico.eu/article/jeff-hauser-opinion-watergate-european-union-qatargate/

The same ruse goes for campaign contributions – if you want to accept a lot of campaign contributions that would fall afoul of ethics rules, just narrow the definition of "campaign contribution" until all the money you're receiving no longer qualifies.

Moran closes by calling on Congress to formulate a real, meaningful code of conduct for the Supremes, one that orders Supreme Court judges not to accept corrupting gifts and to maintain the arm's length neutrality that the rest of the federal judiciary is required to keep. Rather than this new code of conduct constituting proof that SCOTUS can be its own oversight, its gross deficiencies should put to rest any question about whether the Supremes can be trusted to regulate themselves.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/11/17/red-team-black-robes/#security-theater

Image: Senate Democrats (modified) https://commons.wikimedia.org/wiki/File:United_States_Supreme_Court_Building,_July_21,_2020.jpg

CC BY 2.0 https://creativecommons.org/licenses/by/2.0/deed.en

[justinspoliticalcorner]

Rebecca Shabad, Sahil Kapur, and Megan Lebowitz at NBC News:

WASHINGTON — Senate Republicans on Wednesday blocked a Democratic-sponsored bill that would require Supreme Court justices to adopt a binding code of conduct. “The highest court in the land cannot and should not have the lowest ethical standards,” Judiciary Committee Chairman Dick Durbin, D-Ill., said in a floor speech before the motion. Durbin took to the Senate floor Wednesday and sought to pass the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act by “unanimous consent,” which immediately faced Republican opposition. As he promised to do Tuesday, Sen. Lindsey Graham, R-S.C., led a group of GOP senators in blocking the Democratic request, effectively stalling the legislation.

Graham called the bill an “unconstitutional overreach” that would “undermine the court’s ability to operate effectively.” He was joined by Sens. John Kennedy, R-La., Mike Lee, R-Utah, and others in objecting. “I do not think this bill is about ethics. This bill is about abortion,” Kennedy said on the floor Wednesday, accusing Democrats of pushing it because they’re angry that the court overruled Roe v. Wade. That sparked a debate on the floor, with numerous Democrats chiming in to make the case for the bill as an instrument of transparency and a way to protect the legitimacy of the court. The bill would require the justices to adopt a binding code of conduct, create a mechanism to investigate allegations of violations of the code and other laws, require them to explain decisions to recuse themselves from cases and improve disclosure rules when a justice is connected to a party or amicus in a case.

“The Supreme Court has squandered its almost mystical authority, its unique power in the federal government,” Sen. Richard Blumenthal, D-Conn., said in a floor speech.

Republicans in the Senate voted against the SCERT Act, thereby making themselves enablers to the corruption of the right-wing SCOTUS majority.

[nodynasty4us]

From the December 31, 2023 article:

Chief Justice John G. Roberts Jr. did not address any of those contemporary issues Sunday in his annual “Year-end Report on the Federal Judiciary.” Instead, he looked back on technological advancements in the nation’s court system, detailing developments from the quill pens used by justices in the 19th century to electronic databases of the 1980s to online trial proceedings prompted by the coronavirus pandemic.

Roberts, a history buff, also expounded on the potential for artificial intelligence to both enhance and detract from the work of judges, lawyers and litigants. For those who cannot afford a lawyer, he noted, AI could increase access to justice.

...

Roberts used his year-end wrap-up, released by tradition on New Year’s Eve, in part to thank the court system’s technologists and cybersecurity experts. Those experts, he said, keep the judicial branch running behind-the-scenes and answer calls from judges, including Roberts, who said he has “been known to call on help desk staff for urgent and essential assistance.”

Roberts did not mention that this time last year the court was finishing its investigation into the shocking leak of Justice Samuel A. Alito Jr.'s draft opinion that eventually overturned a half-century of abortion rights. The court’s investigative report released last January did not determine the identity of the leaker. While the court’s IT experts did not rule out a hack, the report said there was no evidence to suggest improper access to the court’s IT networks.

[lawbyrhys]

Lawyer's Take on Biden's SCOTUS Reform Ideas

This is a supplementary piece to the SCOTUS Immunity Ruling; if you don't understand that, you can read my post on it and come back here.

Yesterday afternoon, July 29, President Joe Biden gave a speech in which he shared his opinions on the SCOTUS immunity ruling, as well as his opinions on Supreme Court reform and associated topics. Let's break it down.

"I have great respect for our institutions and the separation of powers laid out in our Constitution, but what’s happening now is not consistent with that doctrine of separation of powers."

Biden's stance is a rarity; it makes him the first sitting president in generations to call for such reform to the highest court in the land. Among his groundbreaking proposals are a Constitutional amendment to strip the criminal immunity granted to Presidents by the SCOTUS decision, impose term limits on Supreme Court justices, and instate a stricter code of conduct for the high court. While it'll be difficult for him to get any of these charges through with the split Congress as it is, presumptive Democratic Presidential nominee Kamala Harris—a former prosecutor and attorney general—wholeheartedly endorses the changes, too.

The amendment proposed—“No One Is Above the Law Amendment"—would, as stated, strip all Presidents of prosecutorial immunity to their "official acts" as the recent SCOTUS ruling granted. The amendment would cement that the "Constitution “does not confer any immunity from federal criminal indictment, trial, conviction, or sentencing by virtue of previously serving as President.” Biden went on to say, "I share our Founders’ belief that the president must answer to the law." That's an A+ stance.

Trump, though, always the major projector that he is, went on to respond to Biden's statements in his own to entertainment network Fox News:

“He desperately wants immunity. There’s no way he would write off immunity for a president.” He must've been talking to a mirror.

As for the Justices' term limits, Biden added that setting limitations on their service would make the systematic appointment of Justices “more predictable and less arbitrary.”

Of course, these changes would need Congressional approval; it's highly unlikely Biden would be able to secure that in his term. Should Democrats secure a majority in November, though, the likelihood of these changes being adopted into legislation would greatly increase.

So what do I think about all of this? These are all excellent proposals—we must do everything in our power to ensure that our judicial system remains the fair, just and impartial crown jewel of our country and it's democracy. I have been appalled by both the recent actions and inactions of those at the highest level, and I think some accountability is overdue. believe adopting an amendment would clear up the litigious ambiguity of the SCOTUS ruling. The term limits would help keep the court moral and accountable in their role of maintaining the utmost in just and nonpartisan decisions. I think it is a reasonable expectation that as this country grows and shifts, just like the laws within it, the way those laws are upheld in the highest Court of the land is accountable to some changes and reinforcement of its own. Of course, these changes must remain adherent to the Constitution, but that's why it would require an amendment. Keep it lawful and just.

Is all of this unprecedented? Absolutely, but so was the immunity ruling. American history is full of unprecedented action; we make history here. So long as the Constitution is upheld at every step, I see no reason to stop breaking ground.

[dreaminginthedeepsouth]

[Dave Whamond]

* * * *

Senators Durbin and Whitehouse call for meeting with Chief Justice Roberts to discuss Alito’s displays of insurrectionist flags

Senators Dick Durbin and Sheldon Whitehouse wrote to Chief Justice Roberts on Friday, demanding a meeting to discuss Justice Alito’s display of insurrectionist flags. The letter is here: Letter to Chief Justice Roberts (Senate.gov).

We urge you to immediately take appropriate steps to ensure that Justice Alito will recuse himself in any cases related to the 2020 presidential election and January 6th attack on the Capitol, including the question of former President Trump’s immunity from prosecution for his role in the events of January 6th in Trump v. United States. We also renew our call for the Supreme Court to adopt an enforceable code of conduct for justices. And we request a meeting with you as soon as possible, in your capacity as Chief Justice and as presiding officer of the Judicial Conference of the United States, to discuss additional steps to address the Supreme Court’s ethics crisis.

According to the Washington Post, Justice Roberts has not responded to a request for comment.

Neither Roberts nor Alito will respond positively (or at all) to the demands for a meeting, recusal, and adoption of a binding ethics code. But the letter is the first sign of life from Dick Durbin regarding the crisis enveloping the Supreme Court. Let’s hope there is more to come.

P.S.—Alden Hackmann has created a website that will walk you through the process of filing a complaint with the Supreme Court regarding Justice Alito. Check it out here: Home (dumpalito.com)

[Robert B. Hubbell Newsletter]

[follow-up-news]

Senate Republicans on Wednesday blocked a Democratic-sponsored bill that would require Supreme Court justices to adopt a binding code of conduct. “The highest court in the land cannot and should not have the lowest ethical standards,” Judiciary Committee Chairman Dick Durbin, D-Ill., said in a floor speech before the motion. Durbin took to the Senate floor Wednesday and sought to pass the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act by “unanimous consent,” which immediately faced Republican opposition. As he promised to do Tuesday, Sen. Lindsey Graham, R-S.C., led a group of GOP senators in blocking the Democratic request, effectively stalling the legislation. Graham called the bill an “unconstitutional overreach” that would “undermine the court’s ability to operate effectively.” He was joined by Sens. John Kennedy, R-La., Mike Lee, R-Utah, and others in objecting. “I do not think this bill is about ethics. This bill is about abortion,” Kennedy said on the floor Wednesday, accusing Democrats of pushing it because they’re angry that the court overruled Roe v. Wade.

[curatorofthisdigitalmorass]

In 'Toothless PR Stunt,' Supreme Court Publishes Ethics Code With No Enforcement Mechanisms

In the wake of a series of high-profile scandals surrounding the relationship between right-wing justices and billionaires, the U.S. Supreme Court announced on Monday that it had formally adopted a new Code of Conduct.

The 14-page code is based on requirements for lower court judges, and most of the rules it outlines are not new, the court said. Watchdog groups have been widely critical of the new document, which does not stipulate how the conduct it promotes will be enforced, with the Revolving Door Project labeling it a "toothless PR stunt."

"This unenforceable public relations document serves absolutely no purpose other than to permit the media to revert to pretending that our unaccountable and unethical Supreme Court retains legitimacy," the project's executive director Jeff Hauser said in a statement.

[personal-blog243]

Only 200 years too late but SCOTUS has finally formally drafted and adopted a code of ethics. We will see if this leads to any punishment for any sketchy actions committed by any judges.

[revolant]

“US Supreme Court adopts code of conduct” they didn’t have that before? Like ok cool great but they didn’t have one of those BEFORE?

[beardedmrbean]

Washington — Justice Amy Coney Barrett indicated Monday that she is in favor of the Supreme Court adopting a code of conduct, saying she believes doing so would be a "good idea" and show the public what is taking place at the nation's highest court.

With her support, Barrett joins several of her colleagues who have publicly backed a set of formal ethics rules for the Supreme Court amid pressure from Congress for the court to lay out a binding set of policies.

"I think it would be a good idea for us to do it, particularly so that we can communicate to the public exactly what it is that we're doing in a clearer way than perhaps we have been able to do so far," Barrett said during an event at the University of Minnesota Law School when asked whether she favors an ethics code.

Barrett continued: "There is unanimity among all nine justices that we should and do hold ourselves to the highest standards, highest ethical standards possible."

Scrutiny of Supreme Court ethics

The Supreme Court has faced scrutiny from the Senate over its lack of a code of conduct following a series of reports about lavish trips Justices Clarence Thomas and Samuel Alito accepted, and questions about participation by Justices Sonia Sotomayor and Neil Gorsuch in cases involving their book publishers.

The news outlet ProPublica published a series of reports this summer about the relationship between Justice Clarence Thomas and GOP mega-donor Harlan Crow and found the justice accepted trips aboard Crow's private jet and yacht, and vacationed with the Texas real estate developer, but did not disclose the travel. ProPublica also found Alito flew aboard a private jet provided by hedge fund billionaire Paul Singer to Alaska for a luxury fishing trip. 

Both justices said they were not required to disclose the trips. However, in his financial disclosure report for 2022, Thomas included details about a real estate transaction with Crow for three Georgia properties he purchased from Thomas and his family in 2014. Thomas' report also listed travel aboard Crow's private plane and a stay at his property in the Adirondacks last year. The new disclosures, made public in late August, came after the Judicial Conference adopted new guidelines for what is considered personal hospitality. 

In response to the revelations, the Senate Judiciary Committee advanced legislation that would require the Supreme Court to adopt a code of conduct for the justices and implement procedures to handle complaints of judicial misconduct. Committee Chairman Dick Durbin also requested Chief Justice John Roberts answer questions before the panel about ethics principles, though he declined the invitation.

Roberts instead provided the Senate with a three page "Statement of Ethics Principles and Practices" signed by the nine sitting justices, which he said they all follow.

Amid the growing calls for the Supreme Court to put in place a conduct code, Roberts in May said there is more the high court can do to "adhere to the highest standards" of ethical conduct and said the justices "are continuing to look at the things we can do to give practical effect to that commitment."

Justice Elena Kagan in August said she supports the Supreme Court taking action to adopt formal ethics rules and noted the justices have been discussing the matter. But she said there are a "variety of views" among the nine members. 

"I hope that we will make some progress in this area of the kind that the chief justice talked about and maybe put the question of what can Congress do or what can Congress not do, maybe take that out of play," Kagan said, referring to Roberts' comments months earlier and pushback over whether lawmakers have the authority to require the court to adopt ethics policies.

Justice Brett Kavanaugh said last month that he is "hopeful" the Supreme Court will soon take concrete steps to address the ethics issues it is facing, and echoed that the justices are "continuing to work on those issues."

"To the extent that we can increase confidence, we're working on that," he said.

[justinspoliticalcorner]

David Smith at The Guardian:

“Look at me, look at me,” said Martha-Ann Alito. “I’m German, from Germany. My heritage is German. You come after me, I’m gonna give it back to you.” It was a bizarre outburst from the wife of a justice on America’s highest court. Secretly recorded by a liberal activist, Martha-Ann Alito complained about a neighbour’s gay pride flag and expressed a desire to fly a Sacred Heart of Jesus flag in protest. This, along with audio clips of Justice Samuel Alito himself and a stream of ethics violations, have deepened public concerns that the supreme court is playing by its own rules. The Democratic representative Jamie Raskin has described a “national clamour over this crisis of legitimacy” at the court.

A poll last month for the progressive advocacy organisation Stand Up America suggests that the supreme court will now play a crucial role in voters’ choices in the 2024 election. Nearly three in four voters said the selection and confirmation of justices will be an important consideration for them in voting for both president and senator in November. Reed Galen, a co-founder of the Lincoln Project, a pro-democracy group, said: “The idea that these guys act as if they are kings ruling from above, to me, should absolutely be an issue. It was always Republicans who said we hate unelected judges legislating from the bench and we hate judicial activism. That’s all this stuff is.” Public trust in the court is at an all-time low amid concerns over bias and corruption. Alito has rejected demands that he recuse himself from a case considering presidential immunity after flags similar to those carried by 6 January 2021 rioters flew over his homes in Virginia and New Jersey. Justice Clarence Thomas has ignored calls to step aside because of the role his wife, Ginni, played in supporting efforts to overturn Donald Trump’s loss to Joe Biden in 2020.

Ethical standards have been under scrutiny following revelations that some justices failed to report luxury trips, including on private jets, and property deals. Last week Thomas, who has come under criticism for failing to disclose gifts from the businessman and Republican donor Harlan Crow, revised his 2019 form to acknowledge he accepted “food and lodging” at a Bali hotel and at a California club. These controversies have been compounded by historic and hugely divisive decisions. The fall of Roe v Wade, ending the nationwide right to abortion after half a century, was seen by many Democrats as a gamechanger in terms of people making a connection between the court and their everyday lives.

There are further signs of the debate moving beyond the Washington bubble. Last week, the editorial board of the Chicago Sun-Times newspaper argued that, since the court’s own ethics code proved toothless, Congress should enact legislation that holds supreme court justices to higher ethical standards. The paper called for the local senator Dick Durbin of Illinois, who is chair of the Senate judiciary committee, to hold a hearing on the issue.

[...] Congressional Democrats have introduced various bills including one to create an independent ethics office and internal investigations counsel within the supreme court. Broader progressive ideas include expanding the number of seats on the court or limiting the justices to 18-year terms rather than lifetime appointments. But such efforts have been repeatedly thwarted by Republicans, who over decades impressed on their base the importance of the court, ultimately leading to a 6-3 conservative majority including three Trump appointees. This week Senate Republicans blocked the ​​Supreme Court Ethics, Recusal, and Transparency Act, legislation that would require the court to adopt a binding code of conduct for all justices, establish procedures to investigate complaints of judicial misconduct and adopt rules to disclose gifts, travel and income received by them that are at least as rigorous as congressional disclosure rules.

Democrats should be aggressive about confronting a runaway radical right-wing majority on SCOTUS and make it a major issue. #SCOTUSisCompromised

See Also:

Vox: What can Democrats actually do about Thomas’s and Alito’s corruption?

[allthebrazilianpolitics]

Military Courts and Human Rights Violations in Brazil from the Perspective of the Inter-American Human Rights System

The Supreme Federal Court of Brazil will soon rule (under a constitutional review case called Ação Direta de Inconstitucionalidade no. 5032, commonly referred to as ADI 5032) whether members of the armed forces that commit crimes against civilians during peacetime should be tried before civilian or military courts. This judgment is critical for Brazil, a country with a long (and recent) period of authoritarian military rule (1964-1985) but without comprehensive transitional justice mechanisms and State accountability for human rights violations.

While the current Brazilian Constitution (adopted in 1988) restricted the institutional role of the military, starting from the 1990s, governments began to routinely employ the Armed Forces in public security contexts – from fighting organised crime in the Favelas or the Amazon rain forest to assisting local security forces with mega-events, such as the 2016 Olympics and the 2014 World Cup (often called “operations to guarantee law and order”). This resulted in a complex and conflictual institutional context: unresolved political and human rights issues combined with increasing reliance on the military for public security matters, often resulting in civilian deaths and claims of excessive use of violence.

In principle, the Brazilian Constitution had institutional mechanisms to oversee the military in these cases. The jurisdiction of military courts encompassed “military crimes,” which were generally perceived to refer to crimes perpetrated by members of the armed forces during wartime or to crimes committed by civilians against the military (Article 124, sole paragraph), therefore excluding any crimes committed during these operations, which were initially tried under civilian courts.

In the late 1990s, Congress approved laws establishing that public security operations by the armed forces are considered “military activities” for the purposes of the Military Penal Code. Therefore, the military courts now have jurisdiction to hear and try non-military crimes perpetrated by members of the armed forces during public security operations. The investigation and trial of these criminal offences, previously conducted by civilian authorities under civilian courts, is now overseen by the military.

In this context, the Attorney General’s Office filed ADI 5032 before the Supreme Federal Court arguing against the constitutionality of these laws on human rights grounds, as authorised under Article 103 of the Brazilian Constitution. The trial began in 2022, and it was initially conducted remotely in an online session. So far, five justices have issued opinions on the matter: three approving the constitutionality of the laws expanding military jurisdiction, one finding them unconstitutional, and one finding partial unconstitutionality of these provisions, but accepting the core of Attorney General’s Office petition against military jurisdiction during “operations to guarantee law and order”. The session was adjourned in early 2023 after Justice Lewandowski formally requested more time to review and debate the matter in an in-person trial session.

Continue reading.

[seemabhatnagar]

Complaint can't be dismissed for non appearance

Complaint can't be dismissed for non appearance of the Complainant where statement of the Complainant has been recorded and Cross Examination of the Complainant has also been conducted. The case ought to be decided on merit.

Background of the Case

This is a case under Section 138 of the Negotiable Instrument (NI) Act. Eight complaints were filed by the Complainant against the Respondent U/s 138 of the NI Act. In three Complaint cases, Complainant was subject to Cross Examination. A submission was made by the counsel of the accused/respondent that Cross Examination of the above three may be adopted in the other three Complaints.

As such the Metropolitan Magistrate (MM) closed the evidence of the Complainant and listed the matter for Defence Evidence.

While the matter was pending, the Appellant's Counsel misled the Appellant/Complainant that he is not required as a settlement is being negotiated.

Therefore Appellant didn't appear any further on the dates so fixed. In these circumstances his complaint was dismissed for Non Appearance.

The order of dismissal was challenged by the Complainant through Criminal Leave Petition before Delhi High Court. Delhi High Court (HC) dismissed all the 08 Criminal Leave Petition by a common order.

Submission before Supreme Court

It was the submission of the Complainant's Counsel that statement of the Complainant has been recorded. Cross examination was also conducted. There existed admissible evidence on record to support the complaint case. Wherefore, the MM ought to have decided the case on merit instead on dismissing the complaint for non appearance.

HC also failed to notice the aforesaid aspect. Therefore order of MM as well as Delhi HC are liable to be set aside and the case be restored at its original position as it was before the MM.

It was submitted by the respondent's Counsel that if there is any technical defect in dismissing the complaint(s) for non-appearance of the complainant, the same be treated as an order of acquittal.

Observation of the Supreme Court

There is a specific averment in the Special Leave Petition(s) that the appellant had led its evidence in the case and thereafter had moved an application under Section 311 of the Code to summon and examine further witnesses. 

There is no specific denial of this fact.

Both the Courts failed to consider whether in the aforesaid circumstances they would have proceeded by dispensing the personal attendance of the complainant.

More so, MM would have decided the case on merit instead of dismissing the complaint for non appearance.

This fact was also not looked into by the Delhi HC.

Order of the Apex Court:

In view of the aforesaid position the Bench of Hon'ble Justice Sudhanshu Dhulia & Hon'ble Justice Manoj Misra vide their order dt. 01.03.2023, set aside the order of MM & Delhi HC and restored the case at its original position.

[dreaminginthedeepsouth]

LETTERS FROM AN AMERICAN

July 21, 2023 (Friday)

HEATHER COX RICHARDSON

JUL 22, 2023

On June 8 the Supreme Court affirmed the decision of a lower court blocking the congressional districting map Alabama put into place after the 2020 census, agreeing that the map likely violated the 1965 Voting Rights Act and ordering Alabama to redraw the map to include two majority-Black congressional districts. 

Today the Alabama legislature passed a new congressional map that openly violates the Supreme Court’s order. By a vote of 75–28 in the House and 24–6 in the Senate, the legislature approved a map that includes only one Black-majority district. 

Senator Tommy Tuberville (R-AL) and many of the other members of Alabama’s congressional delegation had spoken to the Republicans in the state legislature about the map. Editor of the Alabama Reflector Brian Lyman reported that the map’s sponsor said he had spoken to House speaker Kevin McCarthy (R-CA) too: “It was quite simple,” the sponsor said. McCarthy “said ‘I’m interested in keeping my majority.’ That was basically his conversation.” 

Alabama governor Kay Ivey, a Republican, signed the bill into law. 

Today, assistant U.S. attorney general Todd Kim and U.S. attorney for the Western District of Texas Jaime Esparza wrote to Texas governor Greg Abbott and Texas interim attorney general Angela Colmenero warning that the actions of Texas in constructing a barrier in the Rio Grande between the U.S. and Mexico “violate federal law, raise humanitarian concerns, present serious risks to public safety and the environment, and may interfere with the federal government’s ability to carry out its official duties.” 

The floating barrier violates the Rivers and Harbors Act, which prohibits the construction of any obstructions to navigation in U.S. waters and requires permission from the U.S. Army Corps of Engineers before constructing any structure in such waters. Abbott ignored that law to construct a barrier that includes inflatable buoys and razor wire.

Mexico has also noted that barrier buoys that block the flow of water violate treaties between the U.S. and Mexico dating from 1944 and 1970, and has asked for the barriers to be removed. So has the owner of a Texas canoe and kayaking company, who says the buoys prevent him from conducting his business. And so have more than 80 House Democrats, who have noted Abbott’s “complete disregard for federal authority over immigration enforcement.”

Unless Texas promises by 2:00 Tuesday afternoon to remove the barrier immediately, the U.S. will sue. 

Abbott has made fear of immigration central to his political messaging. He is now faced with the reality that Biden’s parole process for migrants at the southern border has dropped unlawful entries by almost 70% since it went into effect in early May, meaning that border agents have more time to patrol and are making it harder to enter the U.S. unlawfully. 

Abbott’s barrier seems designed to keep his messaging amped up, accompanied as it is by allegations that troops from the National Guard and the Texas Department of Public Safety have been ordered to push migrants, including children, back into the river and to withhold water from those suffering in the heat. There are also reports that migrants have been hurt by razor wire installed along the barrier.

Abbott responded to the DOJ’s letter: “I’ll see you in court, Mr. President.” 

Yesterday, on the same day that Shawn Boburg, Emma Brown, and Ann E. Marimow added to all the recent stories of Supreme Court corruption an exclusive story showing how then-leader of the Federalist Society Leonard Leo funded a “a coordinated and sophisticated public relations campaign to defend and celebrate” Supreme Court Justice Clarence Thomas, the Senate Judiciary Committee voted along party lines to advance a bill that would require the U.S. Supreme Court to adopt a binding code of ethics. 

“We wouldn’t tolerate this [behavior] from a city council member or an alderman," committee chair Dick Durbin (D-IL) said. “It falls short of ethical standards we expect of any public servant in America. And yet the Supreme Court won't even acknowledge it’s a problem.” “The Supreme Court Ethics, Recusal, and Transparency Act,” Durbin said, “would bring the Supreme Court Justices’ ethics requirement in line with every other federal judge and restore confidence in the Court.”

Senator Lindsay Graham (R-SC) disagreed that Congress could force the Supreme Court to adopt an ethics code. “This is an unseemly effort by the Democratic left to destroy the legitimacy of the Roberts court,” he said, although he agreed that the justices need “to get their house in order.”

Today, Dahlia Lithwick and Anat Shenker-Osorio noted in Slate that voters of both parties strongly support cleaning up the Supreme Court.

As signs of an indictment for his efforts to overturn the results of the 2020 presidential election grow stronger, Trump has taken to threats. When asked about incarceration, Trump said earlier this week: “I think it’s a very dangerous thing to even talk about, because we do have a tremendously passionate group of voters, much more passion than they had in 2020 and much more passion than they had in 2016. I think it would be very dangerous.”

His loyalists are working to undermine the law enforcement agencies that are supporting the rule of law. On July 11, 2023, Representative Jim Jordan (R-OH), chair of the House Judiciary Committee, wrote to chair of the Committee on Appropriations Kay Granger (R-TX) asking her to defund Biden’s immigration policies as well as the Federal Bureau of Investigation (FBI), which investigates crime.

It is notable that, for all their talk about law and order, the Republican-dominated legislature of Alabama and the state’s Republican governor have just openly defied the U.S. Supreme Court, which is hardly an ideological enemy after Trump stacked it to swing to the far right. 

The Republican governor of Texas is defying both federal law and international treaties. After rampant scandals, the Republican-dominated Supreme Court refuses to adopt an ethics system that might restore some confidence in their decisions. And, aided by his loyalists, the front-runner for the 2024 Republican presidential nomination is threatening mob violence if he is held legally accountable for his behavior. 

The genius of the American rebels in 1776 was their belief that a nation could be based not in the hereditary rights of a king but in a body of laws. “Where…is the King of America?” Thomas Paine wrote in Common Sense. “I'll tell you Friend…that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” 

Democracy is based on the rule of law. Undermining the rule of law destroys the central feature of democracy and replaces that system of government with something else.

In Florida today, U.S. District Judge Aileen Cannon set May 20, 2024, as the date for Trump’s trial for hiding and refusing to give up classified national security documents.

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LETTERS FROM AN AMERICAN

HEATHER COX RICHARDSON