More Prognostication

 

Pearl White shooting an episode of "The Perils of Pauline", via Palisades Interstate Parks Commission.

Really heartened to see the decision by Judge Lucy Koh in San Jose reversing the Commerce Department's crazy attempt to cut the 2020 census head-count off a month early. Not just because it means that in all likelihood we will get the most accurate count possible, but because it openly recognizes the bad faith and inadequate grounding of the original decision, clearly made under intense pressure from the politicals,

Justice Department attorneys have attempted to present speeding up the count as a way for the Census Bureau to meet the Dec. 31 legal deadline for reporting results in light of Congress not giving the bureau more time.

Koh noted, however, that explanation "runs counter to the facts."

"Those facts show not only that the Bureau could not meet the statutory deadline, but also that the Bureau had received pressure from the Commerce Department to cease seeking an extension of the deadline," the judge wrote in the order, which cites multiple internal emails and other documents the administration was required to release for the lawsuit. (NPR)

and characterizing it as "arbitrary and capricious".

In this it goes along with Chief Justice Roberts's decision on the DACA program, which made the same complaint about the Trump administration's attempt to curtail the program, upending hundreds of thousands of lives for no real reason, or rather no real reason the administration was able to express. This is an important point to remember: while we often think of tyranny in terms of cruelty, but the element of arbitrariness—the tyrant doesn't need to offer a reason for anything he does—is equally important and always has been to the discussion, arbitrariness as opposed to rule of law. 

We can't expect Roberts to be concerned with cruelty, he's absolutely a Republican, but we can hope he will oppose arbitrariness, because it's bad for business. This is my take on Roberts, anyway, ever since his original 2012 decision on the Affordable Care Act, in which poor people in the states whose governments objected to expanding the Medicaid program were thrown under the bus but insurance companies and healthcare providers were preserved: he maintained the parts of the act that provided stability and profitability to the giants and their shareholders, as long as it didn't involve a lot of taxpayer dollars, though in a tricky way that would encourage Republicans to keep working on a "repeal and replace" project.

This obviously doesn't mean the ACA is going to survive December's scrutiny, of course. It looks almost certain that Trump will emulate George H.W. Bush's betrayal of Black people when he replaced Thurgood Marshall by Clarence Thomas, and appoint the worst possible replacement for Justice Ruth Bader Ginsburg, a woman who will rule against women's interests at every opportunity, Amy Coney Barrett, who has already expressed her hostility to Roberts's ACA decision:

AMY CONEY BARRETT, 2017: "Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute."

If confirmed, she will vote THIS YEAR to invalidate the ACA, ripping insurance away from 25M people and ending pre-existing condition protections for millions more

— Ian Sams (@IanSams) September 25, 2020

I'm imagining the new court, if it lasts more than a few months, as a kind of reweighting of the division from liberal vs. conservative to neoliberal vs. wingnut, with Gorsuch (who, like Roberts and maybe even more so, is a real patrician—his mother could just about have been a justice too) as the swing vote and the surviving liberals clinging to Roberts to save what fragments they can of the rule of law.

And I'll add that in this perspective I still think the ACA is likely to live to see another day, in spite of Barrett (maybe literally spite—in response to her critique of Roberts's "devotion to constitutional avoidance", which is not very collegial), maybe just hanging on by its teeth like Pauline in one of the original cliffhangers, because that's the result that the American Hospitals, Association, along with the Federation of American Hospitals, The Catholic Health Association of the United States, America’s Essential Hospitals, and the Association of American Medical Colleges and America's Health Insurance Planst (AHIP) all want. Not to mention the evil rightwinger, Jonathan Adler, who did more perhaps than any other single person to overthrow the ACA in the earlier suit (I wrote about it in 2014), but calls this one "implausible", "hard to justify", and "surprisingly weak".

I think there are probably still five justices who will care more about these people (not necessarily "the people") than they do about Trump's neurotic, and weirdly Oedipal, fixation on Obama, and vote to end the controversy by "severing" the question of the individual mandate from the rest of the Act. Also, incidentally, if there's a Democratic Senate on 3 January, it can put the lawsuit to death in about ten minutes, months before the SCOTUS opinion is even announced, by restoring the tax penalty on the uninsured at a rate of, say, a dollar a year, or even more simply by repealing the "individual mandate" altogether, which Obama was always against anyway. So vote!

On the other big Supreme Court issue of the moment, whether Emperor Trump can succeed in his "plan" to essentially bypass the election and have the Court appoint him as president instead— 

Here's Trump admitting that the only way he can win is to claim the election was fraudulent, even before most ballots are cast. https://t.co/QiodOOW9Mk

— Biden | Harris War Room (Text JOE to 30330) (@BidenWarRoom) September 23, 2020

and

I think this will end up in the Supreme Court. And I think it’s very important that we have nine justices. This scam that the Democrats are pulling — it’s a scam — the scam will be before the United States Supreme Court. And I think having a 4-4 situation is not a good situation, if you get that. I don’t know that you’d get that. I think it should be 8-0 or 9-0. But just in case it would be more political than it should be, I think it’s very important to have a ninth justice.

Or as Digby puts it

Update: I did not have the full Lindsey Graham quote when I wrote this and it’s even worse than I thought:

“I promise you as a Republican, if the Supreme Court decides that Joe Biden wins, I will accept the result. The court will decide, and if Republicans lose, we’ll accept the result.”

The court will decide …

—I'm afraid I see less clearly. 

On the one hand, and I want to emphasize this really strongly because a lot of people are not quite getting it, the Court will not decide. That's not how it works. The Supreme Court has no legitimate role whatsoever in deciding a presidential election, where the ultimate authority, to be called on only in the event of emergency, by express constitutional design, is the House of Representatives, that branch of the US government that most directly represents The People (while the Court, appointed justices with lifetime appointments, is the least). If there is a real constitutional crisis like the one we were imagining yesterday, it is the House that makes the decision, though the Senate has a good deal of ability to interfere, and the legislation of 1887 meant to clear up the problems that bedeviled the real constitutional crisis of the 1876 election failed to really do so, but even then the Supreme Court did not come into the picture.

That said, we all know it's not exactly true. You can't dismiss the Supreme Court getting involved the way you can dismiss a fantasy about elector slates like

Congressional Republicans will put together some sham of an electoral college (which after all is just a bunch of guys who say '"Hi, we're the electoral college!") who will confirm that Trump won 

as if there weren't statute law in every state defining who the electors are for that state and precisely how they're named, and some mooks in Congress can decide on their own to override all 50 without bothering to explain why. 

Because in the case of Supreme Court interference we've seen it happening, in the 2000 election, when the Supreme Court did not decide who won, but did knowingly bend the process in a Republican direction by taking on the Bush v. Gore lawsuit, in which Bush implored the Florida government to stop counting votes, and the Court found for Bush, basing its decision on Bush's 14th Amendment right to equal protection (it "hurt" Bush if Florida changed its mind and decided to recount all the votes instead of just the votes from selected precincts, just the way it hurt an ex-slave to be lynched), a decision so embarrassing that the Court hastily added it must never be used as a precedent.

Trump doesn't know any of that, as his language ("the scam will be before the United States Supreme Court") indicates. He really "believes" (always a kind of loaded word when applied to our president) what he's seen on TV, that the Court decided that the Republicans actually won the 2000 election, and he hopes they'll do the same thing for him—he files a suit, "Please declare that I won because the ballots are a disaster," and the Court says, "Sure thing, would you like fries with that?"

But that doesn't mean there's no way Bush v. Gore can't be replicated. I can't imagine it, I can't imagine what the grounds would be (beyond absurd and obviously bogus and ultimately useless claims like Trump's 2016 insistence that millions of undocumented aliens had voted in California, which wouldn't have changed the Electoral College results at all if it had been true, which it self-evidently wasn't), and I can't imagine how it could be applied to the necessary five or ten or more states simultaneously, and a "scam", for which there will be no evidence (it will be the FBI, where nobody is in a mood to take orders from Trump to fabricate things, that collects it), isn't the kind of thing they'll need to be looking for (just as it wasn't in 2000, when they went instead for this bogus "equity" issue) but that doesn't mean Billy Barr can't imagine it. 

And I don't know, though I obviously suspect, how Trump might have pulled Gorsuch and Kavanaugh and Barrett into his kompromat camp in his job interviews, though we have a good idea from Comey and McCabe how that might work. But I do know that just because Trump doesn't know what he's talking about doesn't mean it can't happen.

But I really don't envisage an effective suit or series of suits that will do more than slow down the process, and I do know the remedy, which seems within reach, of a really gigantic blue wave. 

Maya Gibeira, via.