alternet--2020-10-11--How to reduce the destructive political power of the Supreme Court — and save Democracy

With the death of Ruth Bader Ginsburg and the nomination of a polar opposite replacement , only one response that makes any sense : Expand the Supreme Court .
The only real question is by how much .
There are other responses that can do some good — perhaps even more good .
But without court expansion , the existing court can , and almost certainly will , strike them down .
Yes , some call it an extreme step .
But there 's a more extreme step : — as some Republicans argued in the 1850s , in response @ @ @ @ @ @ @ to the point , this is an extreme situation that demands extreme responses .
As Boston College law professor Kent Greenfield on Sept. 21 : It 's also been more than 20 years since Republicans represented a majority of voters in the Senate , making the condition of minority rule even more extreme .
It 's also self-reinforcing : As , a 6-3 conservative majority could strike down a new version of HR 1 , the , including wildly popular nonpartisan redistricting commissions .
The same fate awaits virtually everything else Democrats have @ @ @ @ @ @ @ justice correspondent , Elie Mystal , argued last February in an article bluntly titled , `` If We Do n't Reform the Supreme Court , Nothing Else Will Matter `` : And that was seven months before Ginsburg 's death .
Now , as election law maven Richard L. Hasen puts it , `` Trump 's New Supreme Court Is Coming for the Next Dozen Elections . ''
This threat to our democracy comes at a time when others around the world are increasingly turning to citizens ' assemblies as a way to @ @ @ @ @ @ @ as I .
At least one new book for introducing direct democracy at the national level , starting with advisory referenda .
This wildly anti-democratic situation — although temporarily normalized by our myopic , dysfunctional elites — actually violates deeply entrenched bipartisan norms , as underscored by University of Washington political scientist Scott Lemieux : What 's more , Lemieux notes , previous violations of this norm `` all led to constitutional crises that ended only when the court itself backed down , '' including Franklin D. Roosevelt 's oft-misremembered confrontation , which @ @ @ @ @ @ @ down New Deal legislation , most notably .
Nor is there any `` normal '' way out through political victory , Lemieux warns : A 6-3 conservative majority `` would be essentially impossible for Democrats to displace through ordinary means , irrespective of the results of future elections . ''
So what might seem in isolation like an extreme or unwarranted norm-breaking move by Democrats is actually the exact opposite : an act of restoration to the guiding shared norms that have predominated across better than two centuries .
Continued violation of these @ @ @ @ @ @ @ of trust that brought us Donald Trump in the first place , and which he has greatly intensified with the enthusiastic cooperation of Senate Republicans led by Mitch McConnell .
So expanding the Supreme Court is the only option .
As I said earlier , the real question is by how much .
Adding six new seats to the court would compensate for McConnell 's double theft , with a two-seat penalty for deterrence .
It would reflect the reality that norms are not self-enforcing .
As `` norms do n't just rely @ @ @ @ @ @ @ to adhere to them .
They also rely on the willingness of actors to violate them under the right circumstances .
If one side violates , then the other side has to be prepared to punish . ''
Indeed , the more nakedly one side pursues power as an end in itself , the more necessary it becomes to punish them , since they 've proven themselves immune to anything else .
Trump 's lawlessness is Exhibit A in this regard , but it was his commitment to the GOP 's judicial agenda @ @ @ @ @ @ @ first place , and that has bound the party and its followers to him even now , in the midst of an horrific plague he 's done far more to spread than to stop .
Adding just three seats would be a gift , creating a balanced 6-6 court that would necessarily rule more narrowly and less contentiously .
Law professor Eric Segall , author of `` Supreme Myths : Why the Supreme Court Is Not a Court and Its Justices are Not Judges , '' made precisely this argument about the 4-4 @ @ @ @ @ @ @ Antonin Scalia that year , amid widespread expectation that Hillary Clinton would be elected president , Segall told me in an interview , he believed `` this was a moment in time that we can get left and right at the table and constructively weaken the Supreme Court for both sides .
`` If you give me 10 minutes with every member of Congress I could convince them , '' Segall said , `` because they get more powerful as the court gets weaker , by definition . ''
By the way , @ @ @ @ @ @ @ of justices — six .
Nothing about the current arrangement is enshrined in the Constitution .
Then there 's going big : Adding 10 seats could open to the door to a whole different world , with a structure similar to the federal circuit courts , as Elie Mystal argued in the Nation article mentioned above .
Most cases would be heard by a three-judge panel , chosen at random .
It would take a majority vote of such a panel for the full court to consider a case .
This would also @ @ @ @ @ @ @ , and produce narrower , more moderate decisions that intrude less on democratic decision making , Mystal contended .
He also linked to a proposal from the group Fix the Court for a system of fixed 18-year terms staggered to ensure an even distribution of presidential appointments .
After 18 years , judges would shift to senior status , a well-established circuit court practice .
Some claim this would violate the Constitution .
But it seems clear that the court itself could rule otherwise , and there are good reasons to think that @ @ @ @ @ @ @ increasingly but as Mystal acknowledges , the existing court would likely strike it down .
Again , that 's why old-fashioned , blunt-force court-packing is the most viable option — at least initially .
Pack it big enough — with 10 new justices , as Mystal suggests — and you could wind up with a new court that would then OK a term-limit system .
But whatever the number and however it 's conceived , court expansion is an absolute necessity , as Mystal 's prognosis makes clear .
As : `` Name @ @ @ @ @ @ @ the current dilemma faced by Democrats , and I will show you a constitutional defect the conservative Supreme Court will use against it .
The only exception is court expansion . ''
This does n't mean other ideas should n't be considered — I think they should .
But it 's futile to pursue them without court expansion leading the way .
There are two further imbalances we have to fight .
First comes the decades ' worth of and even which I 've written about here before .
As , this began @ @ @ @ @ @ @ Republicans a twofold benefit : `` The court has been generally and increasingly conservative , and yet Republicans have both placed a higher priority on it and have had negative attitudes towards it . ''
At bottom , conservatives are driven by a `` restoration fantasy '' of a world that never existed , and the Supreme Court is their way of getting there .
Some sign onto a 19th-century fantasy of utterly unregulated capitalism , some to a Christian nationalist fantasy of America as a biblical nation — or , more radically @ @ @ @ @ @ @ similar to `` The Handmaid 's Tale . ''
In the legal arena there are the dual fantasies of `` textualism '' and `` originalism , '' which is now incoherently collapsing into a bewildering array of forms — `` Originalism is a 'They ' not an 'It , ' '' .
What unites all these contradictory worldviews is a rejection of science , progress , facts and America 's increasingly diverse , actually existing majority .
The Supreme Court is all they have left .
Without it , all is lost in @ @ @ @ @ @ @ taken such a desperate , extremist view — at least not , when there were good , credible reasons to do so .
The second imbalance is that while Democratic voters have finally woken up — Lemieux points to midterm polling , along with the mountains of cash raised in the wake of Ginsburg 's death — Democratic elites have not .
Senate Minority Leader Chuck Schumer and others have repeatedly refused to discuss expanding the court , despite the obvious deterrent power such a threat could carry .
( Joe Biden has @ @ @ @ @ @ @ Harris made clear in her recent debate with Mike Pence — but he is n't talking about it openly either . )
Democrats ' self-defeating , one-step-at-a-time focus is the exact opposite of the long-term strategy Republicans have pursued for decades .
The elites ' narrow focus has a long-term demobilizing effect , which has suited the Democrats ' corporate wing just fine .
But that simply ca n't be sustained any longer , in the post-Parkland , Climate Strike , Black Lives Matter , COVID-19 world that now confronts the threats Mystal @ @ @ @ @ @ @ to expand the court if and they take power in January , they will be signing their own death warrants .
As : One major obstacle to overcome is the misguided notion that democratic norms are self-reinforcing .
Another is confusion over what those norms really are and how they work .
As Henry Farrell of Crooked Timber points out , the perception of FDR 's court-packing as a dangerous , norm-breaking effort that failed — as it 's presented , for example , in `` `` — is incomplete , at best @ @ @ @ @ @ @ .
In the face of Roosevelt 's threat , the court stopped striking down popular legislation , including : `` One norm that had been pretty systematically trashed – judicial respect for what citizens and their democratically elected representatives actually wanted – was only preserved through Roosevelt 's credible threat to upset another norm . ''
Segall sees that as a valuable precedent .
`` This Court needs to be scared into humility , '' he told me .
`` FDR did it and it worked , like , for 30 years .
@ @ @ @ @ @ @ , I 'm in favor of anything that weakens the court and makes it less partisan and less political , '' Segall said when I asked about Mystal 's idea to have small groups of justices sit in panels , potentially reviewing each other 's decisions .
The lack of review makes the court into a political body , he argues in `` Supreme Myths , '' so having most decisions made by smaller panels , while it would not end that problem , would surely diminish it .
But there 's be @ @ @ @ @ @ @ 100 % sure that 's as clearly constitutional as some other proposals , '' Segall warned , `` because Article III [ of the Constitution ] says that the judicial power of the United States shall be vested in one Supreme Court .
One .
So , I do n't know . ''
On the other hand , we 've had generations of experience with circuit courts structured precisely as Mystal describes , and no one thinks twice about calling them `` courts . ''
While the existing conservative majority might well strike @ @ @ @ @ @ @ court could be expected to lean the other way — another argument for moving quickly .
Once you have 19 justices sitting there , the shear impracticality of them all hearing every single case and debating it in such a large forum casts the question in a very different light .
Segall describes another de-escalating , depolarizing path .
`` Kent Greenfield at Boston College [ quoted above ] is about to have an op-ed in the New York Times saying that Congress should create a specialized constitutional court , like Europe has @ @ @ @ @ @ @ he said .
`` Then Congress can use its jurisdiction under Article III to deprive the Supreme Court of appellate jurisdiction over that court . ''
Jurisdiction-stripping is an idea that 's gotten significant traction on the right in recent years .
But it 's grounded in text , as Segall notes , since the Constitution says Congress has the authority to restrict or limit the Supreme Court 's jurisdiction .
To me , the most appealing use of jurisdiction-stripping would be to protect voting rights .
John Roberts ' delusional ruling striking @ @ @ @ @ @ @ Rights Act utterly disregarded the 15th Amendment 's `` Congress shall have power to enforce this article by appropriate legislation . ''
It would be perfectly reasonable for Congress to reauthorize the Voting Rights Act again , this time citing this specific text , along with that of .
Mystal is skeptical , to put it mildly .
`` I 'm not a huge fan of the various 'jurisdiction stripping ' proposals , for a couple of reasons , '' he told me .
`` That 's exactly the kind of thing Republicans @ @ @ @ @ @ @ .
Remember , as a Black person the thing I fear most is not Republicans or Democrats .
It 's white majorities trying to kill me .
I like the court as a theoretical check against such majoritarian tyranny . ''
Of course , the Court 's record in that regard is n't exactly awe-inspiring , as Keeanga-Yamahtta Taylor recounts for the New Yorker .
The 8-1 gutting of the Civil Rights Act of 1875 , less than a generation after the passage of the Civil War amendments undergirding it is just one @ @ @ @ @ @ @ But there 's a broader problem as well .
`` I do n't have a whole lot of confidence that the Supreme Court will rule that their jurisdiction has been stripped , '' Mystal said .
`` More to the point , I fear that they will rule that jurisdiction-stripping is OK on issues where Republicans are already winning , but suddenly rule that the Dems can not strip jurisdiction on something they actually want to overturn . ''
In fact , he specifically thinks my idea wo n't work : `` We @ @ @ @ @ @ @ , 'People can vote and the Supreme Court ca n't say no , ' and then have the Supreme Court just say , 'Oh well , I guess people can vote , ' '' he said .
`` The court has already largely ignored the 15th Amendment .
They 'll ignore jurisdiction stripping too to stop black people from voting . ''
Finally , as Mystal noted , this does n't really help with state law , `` which is a lot of law and a lot of the most horrible law .
@ @ @ @ @ @ @ which the court rules 6-3 to uphold a new Alabama law restricting abortion `` to the first three hours of pregnancy out of wedlock , or whatever . ''
It does n't officially overturn the Roe v. Wade decision , but effectively outlaws abortion — and jurisdiction-stripping does n't help .
`` If your court reform does n't deal with awful state laws in the South , '' Mystal said , `` then your court reform does n't really work . ''
On the other hand , Segall clearly opposed the more extreme @ @ @ @ @ @ @ decisions , as recently advanced by and .
`` If we 're going to live in a country that follows the rule of law , I think we have to follow the court 's decisions , unless we decide to be a parliamentary system and not a republic anymore , '' Segall said .
Which is not to say the principle of judicial review has always been respected , or even claimed .
Cooper correctly notes that `` The weird thing about judicial 'originalism ' is that the explicit principle of judicial review @ @ @ @ @ @ @ Constitution . ''
( That does n't bother Segall , given his critique of originalism . )
Cooper goes on to say : This accurately captures the political nature of that decision , as well as of the Supreme Court more generally .
But there 's more to the story .
`` Just because the Supreme Court rules on something does n't always mean whatever it says goes , '' Segall told me .
`` For example , in 1962-63 , they end prayer in public schools , but the reality is that @ @ @ @ @ @ @ in the schools . ''
The INS v. Chadha decision of 1983 supposedly ended the practice of legislative vetoes , but Congress and the president both still use them .
And then there 's the case of Brown v. Board of Education .
As Segall notes , 10 years after Brown , schools in the the South were almost entirely re-segregated .
`` So I think we already know how we can undo court decisions .
It 's been done before . ''
These court-ignoring examples all tilt right .
And the counter @ @ @ @ @ @ @ Segall explained : `` It was n't until 1958 and — which denied Arkansas school authorities the right to delay desegregation — `` that the Court basically said , 'We 're supreme , you have to follow us , ' as opposed to 'We decide cases , and let the chips fall where they may . '
'' So the historical record does n't look good .
Questioning the court 's legitimacy on moral grounds is one thing , but this `` solution '' seems more treacherous than the problem it 's meant @ @ @ @ @ @ @ echo the longer historical record laid out by Taylor , which highlights just how poorly protected Black people , women and other disempowered groups have almost always been .
`` The insistence that the Supreme Court is not a political body is a principle of high folly in American politics , '' Taylor notes , adding that `` as the branch of government that is least accountable to the American public , the Supreme Court has tended , for most of its history , toward a fundamental conservatism , siding with tradition over @ @ @ @ @ @ @ '' Along with the familiar 19t-century examples of Dred Scott and Plessy , Taylor cites the `` Civil Rights cases '' ( mentioned above ) , and , turning to the court 's most clearly progressive era , she elucidates how fragile and contingent the achievements anchored in the Brown decision actually are .
She notes both the national security argument the Truman administration made against segregation ( `` Racial discrimination furnishes grist for the Communist propaganda mills , '' its warned ) , and the rapid backsliding of the court itself : @ @ @ @ @ @ @ privileges , '' Taylor argues .
Rather than depending on the Supreme Court , she suggests , `` It is through acts of solidarity and struggle that we have been able to secure our rights and liberties . ''
Taylor concludes by saying , `` It is long overdue to end the Court 's undemocratic role in U.S. society , '' but without offering any specific suggestions about how to do this .
The expansions of democracy I have mentioned in passing—citizens ' assemblies , direct democracy through referenda and initiatives — point @ @ @ @ @ @ @ be done .
But the Court 's existing power must also be reined in .
That 's what 's front and center now .
Elie Mystal 's approach is notable for combining a fighting spirit with a long-term willingness to depoliticize the court .
In February , he argued that adding 10 justices would give Democrats `` the political leverage to make the Republicans an offer they could n't refuse , '' by compelling them to agree to a larger judicial reform package ( including an ethics panel for the Supreme Court ) @ @ @ @ @ @ @ `` the 10 new justices could be evenly split '' between nominees of both parties .
Does that sound like a contradiction ?
Maybe not .
`` I want to fight like hell to win control of the court so that a Democratic run court can be depoliticized , '' he said .
`` I know that sounds like a tension , but I can square the circle .
Basically the legal arguments between conservatives and liberals on the court and in the law do not break down so cleanly on Republican v. @ @ @ @ @ @ @ makes the law so cool and interesting .
But we rarely get to have those debates , because Republicans choose judges based on one thing : the judge 's willingness to overturn precedent if it conflicts with the Republican political agenda .
That 's pretty much it . ''
That 's largely happened because the Federalist Society has taken over the business of selecting Republican judicial nominees , combined with the long-term influence of the Christian right , as described in books like `` `` and `` , '' with results tallied and @ @ @ @ @ @ @ judge who believes that you can just throw away the 50 years of settled precedent codified in Roe v .Wade , because you personally think abortion is immoral , is also a nutty , extremist judge who believes all other sorts of crazy things , '' Mystal explained .
`` You get a whole raft of radical judicial ideology by trying to litmus-test everything around abortion .
It 's how you get judges who also think the 15th Amendment is just a suggestion , but the Second Amendment is the word of God @ @ @ @ @ @ @ who are constantly waging ideological battles instead of ruling on the specific cases and controversies before them . ''
Ironically , there was a time when conservatives made just that kind of argument — but it was riddled with bad faith .
Mystal would have us focus on what 's legitimate .
`` The goal of depoliticizing the courts is to get more people who are looking at the specific facts of the case , as opposed to always tacking to their ideologies , '' he said .
`` If you want to @ @ @ @ @ @ @ 'diverse ' set of backgrounds and experiences and opinions is actually good .
There are case-by-case 'conservative ' points of view that I actually agree with , '' Mystal noted .
`` I do n't mind having 'conservatives ' on the Court , I mind having intellectually dishonest Federalist Society extremists on the court who are only there to strike down a couple of opinions conservatives hate and carry on an ideology war at all other times . ''
Mystal concluded with a crucial caveat : `` Where I differ from , say @ @ @ @ @ @ @ have to win the war first before you de-escalate .
Conservatives play to win , and Democrats must too .
We can have peace , after we win . ''
Democrats desperately need to heed that call to arms .
But they also something more than the fervent desire of their base for a big win .
They need an argument .
That 's where Segall 's final point on court-packing comes in .
`` In 2020 , an institution of life-tenured lawyers second-guessing social , political and educational issues — any kind @ @ @ @ @ @ @ and contested history is a broken institution , '' he said .
`` That has to be the Democrats ' argument .
If they vote to expand the Supreme Court , he concluded , `` We 're not making it stronger to be more Democratic or more liberal .
… We 're packing it to make it weaker . ''

With the death of Ruth Bader Ginsburg and the nomination of a polar opposite replacement, only one response that makes any sense: Expand the Supreme Court. The only real question is by how much. There are other responses that can do some good — perhaps even more good. But without court expansion, the existing court can, and almost certainly will, strike them down.
Yes, some call it an extreme step. But there's a more extreme step: Simply ignore the court's decisions — as some Republicans argued in the 1850s , in response to the Dred Scott decision. More to the point, this is an extreme situation that demands extreme responses. As Boston College law professor Kent Greenfield tweeted on Sept. 21:
Some #SCOTUS facts: 15 of the last 19 appointments were made by GOP Presidents. (16/20 if #Trump gets another.)
gets another.) The last year a majority of the justices were Dem appointees: 1969. Meanwhile, the GOP won the popular vote in the presidential election once in 30 years (2004).
It's also been more than 20 years since Republicans represented a majority of voters in the Senate, making the condition of minority rule even more extreme. It's also self-reinforcing: As Greg Sargent notes , a 6-3 conservative majority could strike down a new version of HR 1, the pro-democracy reforms that House Democrats passed in 2019 , including wildly popular nonpartisan redistricting commissions.
The same fate awaits virtually everything else Democrats have campaigned on, as The Nation's justice correspondent, Elie Mystal, argued last February in an article bluntly titled, " If We Don't Reform the Supreme Court, Nothing Else Will Matter ":
Not a single significant policy or initiative proposed by the candidates for the Democratic presidential nomination is likely to survive a Supreme Court review. Nothing on guns, nothing on climate, nothing on health care — nothing survives the conservative majority on today's court.
And that was seven months before Ginsburg's death. Now, as election law maven Richard L. Hasen puts it, " Trump's New Supreme Court Is Coming for the Next Dozen Elections ." This threat to our democracy comes at a time when others around the world are increasingly turning to citizens' assemblies as a way to expand democracy beyond elite-defined partisan bounds, as I discussed last December . At least one new book lays out a plan for introducing direct democracy at the national level, starting with advisory referenda.
This wildly anti-democratic situation — although temporarily normalized by our myopic, dysfunctional elites — actually violates deeply entrenched bipartisan norms, as underscored by University of Washington political scientist Scott Lemieux :
American political elites have generally supported the strong form of judicial review that emerged in the late 19th century because the Supreme Court generally tracked with the constitutional views of the dominant political coalition. A Supreme Court representing an entrenched, unpopular minority faction that refuses to allow the popular majorities from the other party to effectively govern would be neither democratically legitimate nor politically stable.
What's more, Lemieux notes, previous violations of this norm "all led to constitutional crises that ended only when the court itself backed down," including Franklin D. Roosevelt's oft-misremembered confrontation, which put an end to the court striking down New Deal legislation, most notably the Social Security Act . Nor is there any "normal" way out through political victory, Lemieux warns: A 6-3 conservative majority "would be essentially impossible for Democrats to displace through ordinary means, irrespective of the results of future elections."
So what might seem in isolation like an extreme or unwarranted norm-breaking move by Democrats is actually the exact opposite: an act of restoration to the guiding shared norms that have predominated across better than two centuries. Continued violation of these shared norms will only intensify the erosion of trust that brought us Donald Trump in the first place, and which he has greatly intensified with the enthusiastic cooperation of Senate Republicans led by Mitch McConnell.
So expanding the Supreme Court is the only option. As I said earlier, the real question is by how much.
How many seats?
Adding six new seats to the court would compensate for McConnell's double theft, with a two-seat penalty for deterrence. It would reflect the reality that norms are not self-enforcing. As Henry Farrell explains at Crooked Timber, "norms don't just rely on the willingness of the relevant actors to adhere to them. They also rely on the willingness of actors to violate them under the right circumstances. If one side violates, then the other side has to be prepared to punish."
Indeed, the more nakedly one side pursues power as an end in itself, the more necessary it becomes to punish them, since they've proven themselves immune to anything else. Trump's lawlessness is Exhibit A in this regard, but it was his commitment to the GOP's judicial agenda that allowed him to win in the first place, and that has bound the party and its followers to him even now, in the midst of an horrific plague he's done far more to spread than to stop.
Adding just three seats would be a gift, creating a balanced 6-6 court that would necessarily rule more narrowly and less contentiously. Law professor Eric Segall, author of " Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices are Not Judges ," made precisely this argument about the 4-4 court in 2016 .
After the death of Justice Antonin Scalia that year, amid widespread expectation that Hillary Clinton would be elected president, Segall told me in an interview, he believed "this was a moment in time that we can get left and right at the table and constructively weaken the Supreme Court for both sides.
"If you give me 10 minutes with every member of Congress I could convince them," Segall said, "because they get more powerful as the court gets weaker, by definition." By the way, the court originally had an even number of justices — six. Nothing about the current arrangement is enshrined in the Constitution.
Then there's going big: Adding 10 seats could open to the door to a whole different world, with a structure similar to the federal circuit courts, as Elie Mystal argued in the Nation article mentioned above. Most cases would be heard by a three-judge panel, chosen at random. It would take a majority vote of such a panel for the full court to consider a case. This would also tend to reduce the court's power, and produce narrower, more moderate decisions that intrude less on democratic decision making, Mystal contended.
He also linked to a proposal from the group Fix the Court for a system of fixed 18-year terms staggered to ensure an even distribution of presidential appointments. After 18 years, judges would shift to senior status, a well-established circuit court practice. Some claim this would violate the Constitution. But it seems clear that the court itself could rule otherwise, and there are good reasons to think that it should. That idea has gained increasingly broad ideological support, but as Mystal acknowledges, the existing court would likely strike it down.
Again, that's why old-fashioned, blunt-force court-packing is the most viable option — at least initially. Pack it big enough — with 10 new justices, as Mystal suggests — and you could wind up with a new court that would then OK a term-limit system.
But whatever the number and however it's conceived, court expansion is an absolute necessity, as Mystal's prognosis makes clear. As he argued more recently : "Name me an inventive, nonpartisan solution to the current dilemma faced by Democrats, and I will show you a constitutional defect the conservative Supreme Court will use against it. The only exception is court expansion."
This doesn't mean other ideas shouldn't be considered — I think they should. But it's futile to pursue them without court expansion leading the way.
Imbalances and obstacles
There are two further imbalances we have to fight. First comes the decades' worth of asymmetrical "constitutional hardball" and even anti-democratic "constitutional beanball," which I've written about here before. As the above-cited Scott Lemieux recently noted , this began in the Nixon administration and has given Republicans a twofold benefit: "The court has been generally and increasingly conservative, and yet Republicans have both placed a higher priority on it and have had negative attitudes towards it."
At bottom, conservatives are driven by a "restoration fantasy" of a world that never existed, and the Supreme Court is their way of getting there. Some sign onto a 19th-century fantasy of utterly unregulated capitalism, some to a Christian nationalist fantasy of America as a biblical nation — or, more radically, to a Christian Reconstructionist fantasy chillingly similar to "The Handmaid's Tale." In the legal arena there are the dual fantasies of "textualism" and "originalism," which is now incoherently collapsing into a bewildering array of forms — "Originalism is a 'They' not an 'It,'" as Segall describes .
What unites all these contradictory worldviews is a rejection of science, progress, facts and America's increasingly diverse, actually existing majority. The Supreme Court is all they have left. Without it, all is lost in their paranoid worldview. Liberals have never taken such a desperate, extremist view — at least not since the 1850s , when there were good, credible reasons to do so.
The second imbalance is that while Democratic voters have finally woken up — Lemieux points to midterm polling, along with the mountains of cash raised in the wake of Ginsburg's death — Democratic elites have not. Senate Minority Leader Chuck Schumer and others have repeatedly refused to discuss expanding the court, despite the obvious deterrent power such a threat could carry. (Joe Biden has not ruled it out, as Kamala Harris made clear in her recent debate with Mike Pence — but he isn't talking about it openly either.) Democrats' self-defeating, one-step-at-a-time focus is the exact opposite of the long-term strategy Republicans have pursued for decades. The elites' narrow focus has a long-term demobilizing effect, which has suited the Democrats' corporate wing just fine. But that simply can't be sustained any longer, in the post-Parkland, Climate Strike, Black Lives Matter, COVID-19 world that now confronts the threats Mystal cites.
If Democrats don't act to expand the court if and they take power in January, they will be signing their own death warrants. As Mystal tweeted :
Expanding the court upon victory is going to be the HEIGHT of the Dems political power to do this. The illegitimate process to install ACB will be fresh.
Also, it's the height of the reform argument. Trump broke the court just like he broke everything else. LET'S FIX IT.
One major obstacle to overcome is the misguided notion that democratic norms are self-reinforcing. Another is confusion over what those norms really are and how they work. As Henry Farrell of Crooked Timber points out, the perception of FDR's court-packing as a dangerous, norm-breaking effort that failed — as it's presented, for example, in " How Democracies Die " — is incomplete, at best. Something more fundamental was going on. In the face of Roosevelt's threat, the court stopped striking down popular legislation, including the Social Security Act : "One norm that had been pretty systematically trashed – judicial respect for what citizens and their democratically elected representatives actually wanted – was only preserved through Roosevelt's credible threat to upset another norm."
Segall sees that as a valuable precedent. "This Court needs to be scared into humility," he told me. "FDR did it and it worked, like, for 30 years."
Weakening the Supreme Court
"As a general policy matter, I'm in favor of anything that weakens the court and makes it less partisan and less political," Segall said when I asked about Mystal's idea to have small groups of justices sit in panels, potentially reviewing each other's decisions. The lack of review makes the court into a political body, he argues in "Supreme Myths," so having most decisions made by smaller panels, while it would not end that problem, would surely diminish it.
But there's be a hitch. "I am not 100% sure that's as clearly constitutional as some other proposals," Segall warned, "because Article III [of the Constitution] says that the judicial power of the United States shall be vested in one Supreme Court. One. So, I don't know."
On the other hand, we've had generations of experience with circuit courts structured precisely as Mystal describes, and no one thinks twice about calling them "courts." While the existing conservative majority might well strike down such an innovation, an expanded court could be expected to lean the other way — another argument for moving quickly. Once you have 19 justices sitting there, the shear impracticality of them all hearing every single case and debating it in such a large forum casts the question in a very different light.
Segall describes another de-escalating, depolarizing path. "Kent Greenfield at Boston College [quoted above] is about to have an op-ed in the New York Times saying that Congress should create a specialized constitutional court, like Europe has, to resolve constitutional questions," he said. "Then Congress can use its jurisdiction under Article III to deprive the Supreme Court of appellate jurisdiction over that court."
Jurisdiction-stripping is an idea that's gotten significant traction on the right in recent years. But it's grounded in text, as Segall notes, since the Constitution says Congress has the authority to restrict or limit the Supreme Court's jurisdiction. To me, the most appealing use of jurisdiction-stripping would be to protect voting rights. John Roberts' delusional ruling striking down a key part of the Voting Rights Act utterly disregarded the 15th Amendment's specific authorization that "Congress shall have power to enforce this article by appropriate legislation." It would be perfectly reasonable for Congress to reauthorize the Voting Rights Act again, this time citing this specific text, along with that of Article III .
Pitfalls of weakening the court
Mystal is skeptical, to put it mildly. "I'm not a huge fan of the various 'jurisdiction stripping' proposals, for a couple of reasons," he told me. "That's exactly the kind of thing Republicans will do to take away minority rights. Remember, as a Black person the thing I fear most is not Republicans or Democrats. It's white majorities trying to kill me. I like the court as a theoretical check against such majoritarian tyranny."
Of course, the Court's record in that regard isn't exactly awe-inspiring, as Keeanga-Yamahtta Taylor recounts for the New Yorker . The 8-1 gutting of the Civil Rights Act of 1875, less than a generation after the passage of the Civil War amendments undergirding it is just one of the less-remembered examples Taylor cites.
But there's a broader problem as well. "I don't have a whole lot of confidence that the Supreme Court will rule that their jurisdiction has been stripped," Mystal said. "More to the point, I fear that they will rule that jurisdiction-stripping is OK on issues where Republicans are already winning, but suddenly rule that the Dems cannot strip jurisdiction on something they actually want to overturn."
In fact, he specifically thinks my idea won't work: "We're not going to have Congress say, 'People can vote and the Supreme Court can't say no,' and then have the Supreme Court just say, 'Oh well, I guess people can vote,'" he said. "The court has already largely ignored the 15th Amendment. They'll ignore jurisdiction stripping too to stop black people from voting."
Finally, as Mystal noted, this doesn't really help with state law, "which is a lot of law and a lot of the most horrible law." He offered a speculative case in which the court rules 6-3 to uphold a new Alabama law restricting abortion "to the first three hours of pregnancy out of wedlock, or whatever." It doesn't officially overturn the Roe v. Wade decision, but effectively outlaws abortion — and jurisdiction-stripping doesn't help. "If your court reform doesn't deal with awful state laws in the South," Mystal said, "then your court reform doesn't really work."
On the other hand, Segall clearly opposed the more extreme move of simply ignoring the court's decisions, as recently advanced by Ryan Cooper and Jamelle Bouie . "If we're going to live in a country that follows the rule of law, I think we have to follow the court's decisions, unless we decide to be a parliamentary system and not a republic anymore," Segall said.
Which is not to say the principle of judicial review has always been respected, or even claimed. Cooper correctly notes that "The weird thing about judicial 'originalism' is that the explicit principle of judicial review is nowhere to be found in the Constitution." (That doesn't bother Segall, given his critique of originalism.) Cooper goes on to say:
Actual judicial review was a product of a cynical power grab from Chief Justice John Marshall, who simply asserted out of nothing in Marbury vs. Madison that the court could overturn legislation — but did it in a way to benefit incoming president Thomas Jefferson politically, so as to neutralize his objection to the principle.
This accurately captures the political nature of that decision, as well as of the Supreme Court more generally. But there's more to the story. "Just because the Supreme Court rules on something doesn't always mean whatever it says goes," Segall told me. "For example, in 1962-63, they end prayer in public schools, but the reality is that in the South there's still prayer in the schools." The INS v. Chadha decision of 1983 supposedly ended the practice of legislative vetoes, but Congress and the president both still use them. And then there's the case of Brown v. Board of Education. As Segall notes, 10 years after Brown, schools in the the South were almost entirely re-segregated. "So I think we already know how we can undo court decisions. It's been done before."
These court-ignoring examples all tilt right. And the counter to them tilted to the left, Segall explained: "It wasn't until 1958 and Cooper vs Aaron" — which denied Arkansas school authorities the right to delay desegregation — "that the Court basically said, 'We're supreme, you have to follow us,' as opposed to 'We decide cases, and let the chips fall where they may.'"
So the historical record doesn't look good. Questioning the court's legitimacy on moral grounds is one thing, but this "solution" seems more treacherous than the problem it's meant to solve.
A troubled record
The examples Segall cites echo the longer historical record laid out by Taylor, which highlights just how poorly protected Black people, women and other disempowered groups have almost always been. "The insistence that the Supreme Court is not a political body is a principle of high folly in American politics," Taylor notes, adding that "as the branch of government that is least accountable to the American public, the Supreme Court has tended, for most of its history, toward a fundamental conservatism, siding with tradition over more expansive visions of human rights."
Along with the familiar 19t-century examples of Dred Scott and Plessy, Taylor cites the "Civil Rights cases" (mentioned above), and, turning to the court's most clearly progressive era, she elucidates how fragile and contingent the achievements anchored in the Brown decision actually are. She notes both the national security argument the Truman administration made against segregation ("Racial discrimination furnishes grist for the Communist propaganda mills," its amicus brief warned), and the rapid backsliding of the court itself:
The Brown decision was a public indicator of progress, but its decree was quickly undermined when, the following year, the Court prescribed that school desegregation be undertaken with "all deliberate speed." Without a directive that the ruling should take effect immediately, the South was provided legal cover to drag its feet, as the racist "massive resistance" to school integration began to take hold. ...
Even when the Court has ruled in ways that appear to be in the interest of minorities or socially and economically marginalized populations, its decisions can be ephemeral, susceptible to partisan shifts, while creating the dangerous illusion of permanence.
This ephemeral status "reduces rights to privileges," Taylor argues. Rather than depending on the Supreme Court, she suggests, "It is through acts of solidarity and struggle that we have been able to secure our rights and liberties." Taylor concludes by saying, "It is long overdue to end the Court's undemocratic role in U.S. society," but without offering any specific suggestions about how to do this. The expansions of democracy I have mentioned in passing—citizens' assemblies, direct democracy through referenda and initiatives — point to one important facet of what can be done. But the Court's existing power must also be reined in. That's what's front and center now.
A fight for peace?
Elie Mystal's approach is notable for combining a fighting spirit with a long-term willingness to depoliticize the court. In February, he argued that adding 10 justices would give Democrats "the political leverage to make the Republicans an offer they couldn't refuse," by compelling them to agree to a larger judicial reform package (including an ethics panel for the Supreme Court), in exchange for a promise that "the 10 new justices could be evenly split" between nominees of both parties. Does that sound like a contradiction? Maybe not.
"I want to fight like hell to win control of the court so that a Democratic run court can be depoliticized," he said. "I know that sounds like a tension, but I can square the circle. Basically the legal arguments between conservatives and liberals on the court and in the law do not break down so cleanly on Republican v. Democrat lines. "That's what makes the law so cool and interesting. But we rarely get to have those debates, because Republicans choose judges based on one thing: the judge's willingness to overturn precedent if it conflicts with the Republican political agenda. That's pretty much it."
That's largely happened because the Federalist Society has taken over the business of selecting Republican judicial nominees, combined with the long-term influence of the Christian right, as described in books like " The Power Worshippers " and " Building God's Kingdom ," with results tallied and reflected on here .
"The kind of judge who believes that you can just throw away the 50 years of settled precedent codified in Roe v .Wade, because you personally think abortion is immoral, is also a nutty, extremist judge who believes all other sorts of crazy things," Mystal explained. "You get a whole raft of radical judicial ideology by trying to litmus-test everything around abortion. It's how you get judges who also think the 15th Amendment is just a suggestion, but the Second Amendment is the word of God. It's how you get judges who are constantly waging ideological battles instead of ruling on the specific cases and controversies before them."
Ironically, there was a time when conservatives made just that kind of argument — but it was riddled with bad faith. Mystal would have us focus on what's legitimate. "The goal of depoliticizing the courts is to get more people who are looking at the specific facts of the case, as opposed to always tacking to their ideologies," he said.
"If you want to look at cases, then having a 'diverse' set of backgrounds and experiences and opinions is actually good. There are case-by-case 'conservative' points of view that I actually agree with," Mystal noted. "I don't mind having 'conservatives' on the Court, I mind having intellectually dishonest Federalist Society extremists on the court who are only there to strike down a couple of opinions conservatives hate and carry on an ideology war at all other times."
Mystal concluded with a crucial caveat: "Where I differ from, say, Barack Obama ... is that you have to win the war first before you de-escalate. Conservatives play to win, and Democrats must too. We can have peace, after we win."
Democrats desperately need to heed that call to arms. But they also something more than the fervent desire of their base for a big win. They need an argument. That's where Segall's final point on court-packing comes in.
"In 2020, an institution of life-tenured lawyers second-guessing social, political and educational issues — any kind of issues — based on imprecise text and contested history is a broken institution," he said. "That has to be the Democrats' argument. If they vote to expand the Supreme Court, he concluded, "We're not making it stronger to be more Democratic or more liberal. … We're packing it to make it weaker."


alternet--2020-10-11--'COVchella' at the White House: Tiny crowd shows up for Trump's rally

President Trump greeted a couple hundred people gathered on the South Lawn of the White House from a balcony on Saturday in an event many on Twitter have dubbed `` COVchella . ''
Sounding hoarse , Trump said `` I 'm feeling great , '' calling Covid-19 by the racist name `` China Virus . ''
Trump gave his brief 18-minute speech from the same White House balcony where Trump 's bizarre salute earlier this week evoked Benito Mussolini and Eva Peron .
`` No one is hurt more by the left-wing war on cops than African Americans , '' @ @ @ @ @ @ @ in just 4 Democrat-Run cities , over 1,000 African-Americans were murdered as a result of violent crime .
And the riots , looting , and arson disproportionately hurt Black and Latino communities . ''
The smaller than expected gathering on the South Lawn of the White House was organized by controversial conservative activist Candace Owens ' group Blexit , a campaign to urge Black Americans to leave the Democratic Party .
Trump 's advisor on COVID-19 was not wearing a mask at Saturday 's rally .
Dr Scott Atlas was spotted standing off @ @ @ @ @ @ @ .
Although the Trump administration refuses to say whether he 's still infected with the COVID-19 virus , Trump plans to hold rallies in Florida on Monday , Pennsylvania on Tuesday and Iowa on Wednesday .

President Trump greeted a couple hundred people gathered on the South Lawn of the White House from a balcony on Saturday in an event many on Twitter have dubbed "COVchella."
Sounding hoarse, Trump said "I'm feeling great," calling Covid-19 by the racist name "China Virus."
Trump gave his brief 18-minute speech from the same White House balcony where Trump's bizarre salute earlier this week evoked Benito Mussolini and Eva Peron.
"No one is hurt more by the left-wing war on cops than African Americans," Trump said. "Last year, in just 4 Democrat-Run cities, over 1,000 African-Americans were murdered as a result of violent crime. And the riots, looting, and arson disproportionately hurt Black and Latino communities."
The smaller than expected gathering on the South Lawn of the White House was organized by controversial conservative activist Candace Owens' group Blexit, a campaign to urge Black Americans to leave the Democratic Party.
Trump's advisor on COVID-19 was not wearing a mask at Saturday's rally. Dr Scott Atlas was spotted standing off to the side of the South Lawn.
Although the Trump administration refuses to say whether he's still infected with the COVID-19 virus, Trump plans to hold rallies in Florida on Monday, Pennsylvania on Tuesday and Iowa on Wednesday.


alternet--2020-10-11--Is Kayleigh McEnany sending secret messages to QAnon? Here's what one GOP senator noticed

Is White House Kayleigh McEnany secretly communicating with pro-Trump conspiracy theorists through her Fox News appearances ?
That question was @ @ @ @ @ tweet sent by Sen. Chuck Grassley ( R-IA ) .
Grassley , writing in a @ @ @ @ @ followers , suggested McEnany put a new battery in the clock behind her , as @ @ @ @ @ .
Followers of the QAnon conspiracy theorists have been focused on that exact time , @ @ @ @ @ October 10th , after the account behind the mass delusion tweeted a Mickey Mouse clock @ @ @ @ @ as NBC news reporter Ben Collins has been covering .
This was apparently not the @ @ @ @ @ with the clock set to 10:10.It was noted on Twitter on Tuesday .

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alternet--2020-10-11--Conservative columnist shames GOP senators: 'It’s too late to scurry away from the sinking Trump shi

Conservative columnist shames GOP senators: 'It’s too late to scurry away from the sinking Trump ship'

Jennifer Rubin is a longtime NeverTrumper member of the marginally sane community .
She 's one of The Washington Post 's conservative writers , but when she decided to side with common sense over Trumpite servility , she became an apostate in the eyes of many of her fellow travelers .
Importantly , she pushed away from the Trumpian hog trough ages ago , whereas many conservatives-cum-cultists are now so sated and logy from their unholy bacchanal they should be easier to pick off than fat , flightless pigeons when the voters finally have their say .
And now that @ @ @ @ @ @ @ on the `` acting presidential '' scale — from `` barely human '' to `` raw , quavering baboon rectum '' — she 's calling bullshit on all the inside-the-Beltwayers who are suddenly trying to flee from the ocher abomination like Quint from the shark on the deck of the Orca .
Now that Trump 's worst enablers suddenly find themselves in a hellish Hieronymus Bosch painting — their torsos ( and political prospects ) being gnawed on by giant , grotesque Trump heads for all eternity — there 's really no escape @ @ @ @ @ @ @ stance is long past .
They 'll be treading water in Trump scat until all that bad karma is burned off .
Could take a while .
And while Rubin notes that Democrats — fueled by outsized enthusiasm — are outraising their counterparts up and down the ballot , the real problem for Republicans is their generally pusillanimous reaction to Trump 's serial outrages : In other words , they should have mutinied as soon as Lt. Cmdr .
Queeg flipped out over the strawberries .
But they hung on for dear life @ @ @ @ @ @ @ .
But it 's not over yet !
Donate to your fave Senate candidate — and be sure to give Joe some love ( i.e.
, cash ) , if you can swing it .

Jennifer Rubin is a longtime NeverTrumper member of the marginally sane community. She's one of The Washington Post's conservative writers, but when she decided to side with common sense over Trumpite servility, she became an apostate in the eyes of many of her fellow travelers.
Importantly, she pushed away from the Trumpian hog trough ages ago, whereas many conservatives-cum-cultists are now so sated and logy from their unholy bacchanal they should be easier to pick off than fat, flightless pigeons when the voters finally have their say.
And now that Trump has dropped a few more notches on the "acting presidential" scale — from "barely human" to "raw, quavering baboon rectum" — she's calling bullshit on all the inside-the-Beltwayers who are suddenly trying to flee from the ocher abomination like Quint from the shark on the deck of the Orca.
The Washington Post:
The big problem is that Senate Republicans wrapped themselves so tightly around Trump — defending his plainly impeachable conduct in the Senate trial, excusing his covid-denialism, ignoring his racist language and incitement to violence and declining to stop his financial self-dealing — that it's too late to scurry away from the sinking Trump ship. When the GOP eschewed a convention platform this summer in favor of heaping praise on Trump, Republicans made clear that they have no position other than Trump idolatry. Even now, they seem not to have learned anything.
Now that Trump's worst enablers suddenly find themselves in a hellish Hieronymus Bosch painting — their torsos (and political prospects) being gnawed on by giant, grotesque Trump heads for all eternity — there's really no escape. The time to take a principled stance is long past. They'll be treading water in Trump scat until all that bad karma is burned off. Could take a while.
And while Rubin notes that Democrats — fueled by outsized enthusiasm — are outraising their counterparts up and down the ballot, the real problem for Republicans is their generally pusillanimous reaction to Trump's serial outrages:
The crazier Trump seems in the last stretch (pleading for indictments of his political opponents, recklessly spreading covid-19, on-again-off-again stimulus negotiations), the more pathetic the Republicans who enabled him look. This is the guy you said had it all figured out? This was the guy you defended as a victim of liberal elites? These Republicans long ago threw away independent judgment, character, responsiveness to the voters back home and honesty, for fear of provoking Trump's ire or the condemnation of the right-wing media and the MAGA crowd. It turns out winning is awfully hard, even in red states, when your Trump sycophancy horrifies women, college-educated voters, non-White voters, young voters and seniors. Money is the least of Republicans' troubles.
In other words, they should have mutinied as soon as Lt. Cmdr. Queeg flipped out over the strawberries. But they hung on for dear life. And now they're basically sunk.
But it's not over yet! Donate to your fave Senate candidate — and be sure to give Joe some love (i.e., cash), if you can swing it.


alternet--2020-10-11--Paul Krugman: Trump's spiteful actions offer a dire warning about what's to come if he loses on Nov.

Paul Krugman: Trump's spiteful actions offer a dire warning about what's to come if he loses on Nov. 3

We must assume , based on all evidence , that Donald Trump 's primary motivation is not rooted in any political calculus , but is pure , unadulterated spite .
Economist and Nobel laureate Paul Krugman , writing for the The New York Times , came to that conclusion after Trump 's abrupt dismissal this week of COVID-19 relief efforts intended to ease the economic suffering of Americans and American businesses .
And because of that , Krugman warns , the implications when he loses his bid for reelection on Nov. 3 , which current polls indicate is likely , @ @ @ @ @ @ @ necessity for both further stimulus and relief for both businesses shuttered by the pandemic and Americans facing prolonged unemployment has been explored extensively on this site and elsewhere .
Krugman , however , looks at the political ramifications of what Trump is doing and comes away with one inarguable conclusion : For Trump , there is no political rationale at work here .
What we are witnessing unfolding in real time is a wholly emotional reaction borne of rage and vindictiveness from an unbalanced sociopath who is now directing his fury at the @ @ @ @ @ @ @ dismisses the excuses put forth by Senate Republicans ( under the aegis of Majority Leader Mitch McConnell ) for their failure to provide an aid package to the American people .
The right insists that further aid would signify an implicit and unwelcome acknowledgement that government solutions are necessary in times of unprecedented crisis ; that much of the aid being sought would go towards Democratically-run states ; and that further unemployment aid will discourage people from returning to an unsafe work environment .
But none of these reasons make sense from a @ @ @ @ @ @ @ by the millions , hundreds of thousands of businesses are barely hanging on , and state budgets are collapsing .
This is occurring in every state , not just in `` blue '' ones .
And , as he points out , it 's not only Democrats but Wall Street itself that is expressing the need for further stimulus and COVID-19 relief funding .
It is the Federal Reserve that is expressing its exasperation at a president and Senate majority leader who seem to have abandoned all sense of economic reality .
If @ @ @ @ @ @ @ and if—despite all his machinations , despite Attorney General William Barr 's phony witch hunts , despite his clarion call for assistance from the Russian Federation , despite his threats of violence and refusal to accept the election results , and despite Fox News ' incessant propaganda supporting and encouraging these efforts—he does in fact lose on Nov. 3 , what will be his reaction ?
And what will someone with Trump 's vindictive mindset and complete lack of human empathy do to sabotage or destroy the country in the final months of @ @ @ @ @ @ @ all about to find out .
But one thing seems certain : Whatever revenge Trump takes will be felt by all .
Not just by Democrats , who he will see as the direct reason for his downfall , but also by Republicans , who he will see as having failed him .

We must assume, based on all evidence, that Donald Trump's primary motivation is not rooted in any political calculus, but is pure, unadulterated spite. Economist and Nobel laureate Paul Krugman, writing for theThe New York Times, came to that conclusion after Trump's abrupt dismissal this week of COVID-19 relief efforts intended to ease the economic suffering of Americans and American businesses. And because of that, Krugman warns, the implications when he loses his bid for reelection on Nov. 3, which current polls indicate is likely, are dire for the country.
[W]e got a preview of what a lame-duck Trump presidency might look like Tuesday. Trump hasn't even lost yet, but he abruptly cut off talks on an economic relief package millions of Americans desperately need (although as of Thursday he seemed to be backtracking). And his motivation seems to have been sheer spite.
The necessity for both further stimulus and relief for both businesses shuttered by the pandemic and Americans facing prolonged unemployment has been explored extensively on this site and elsewhere. Krugman, however, looks at the political ramifications of what Trump is doing and comes away with one inarguable conclusion: For Trump, there is no political rationale at work here. What we are witnessing unfolding in real time is a wholly emotional reaction borne of rage and vindictiveness from an unbalanced sociopath who is now directing his fury at the American people.
Krugman carefully dissects and dismisses the excuses put forth by Senate Republicans (under the aegis of Majority Leader Mitch McConnell) for their failure to provide an aid package to the American people. The right insists that further aid would signify an implicit and unwelcome acknowledgement that government solutions are necessary in times of unprecedented crisis; that much of the aid being sought would go towards Democratically-run states; and that further unemployment aid will discourage people from returning to an unsafe work environment.
But none of these reasons make sense from a political standpoint. Americans are still hurting by the millions, hundreds of thousands of businesses are barely hanging on, and state budgets are collapsing. This is occurring in every state, not just in "blue" ones.
And, as he points out, it's not only Democrats but Wall Street itself that is expressing the need for further stimulus and COVID-19 relief funding. It is the Federal Reserve that is expressing its exasperation at a president and Senate majority leader who seem to have abandoned all sense of economic reality.
As far as I can tell, nobody has offered a plausible political motive, any way in which refusing even to try rescuing the economy helps Trump's prospects. What this looks like, instead, is vindictiveness.
[***]
Yet getting a relief deal would have required accepting a compromise with that "nasty" woman Nancy Pelosi. And it seems that he would rather let the economy burn.
If this is Trump's attitude now, and if—despite all his machinations, despite Attorney General William Barr's phony witch hunts, despite his clarion call for assistance from the Russian Federation, despite his threats of violence and refusal to accept the election results, and despite Fox News' incessant propaganda supporting and encouraging these efforts—he does in fact lose on Nov. 3, what will be his reaction? And what will someone with Trump's vindictive mindset and complete lack of human empathy do to sabotage or destroy the country in the final months of his presidency?
The most immediate concern is that he won't accept the election results. But we should also be worried about what will follow if he is forced to accept the will of the people, but is still running the country. Trump has always been vindictive; what will he do if and when he has nothing left but spite?
It appears we are all about to find out. But one thing seems certain: Whatever revenge Trump takes will be felt by all. Not just by Democrats, who he will see as the direct reason for his downfall, but also by Republicans, who he will see as having failed him.


alternet--2020-10-11--'Without my permission': Fauci says he was 'taken out of context' in Trump ad touting coronavirus re

'Without my permission': Fauci says he was 'taken out of context' in Trump ad touting coronavirus response

Dr. Anthony Fauci on Sunday said an advertisement from the Trump campaign that featured a quote from the renowned immunologist was taken out of context , telling CNN 's Kaitlan Collins that he did not consent to be the president 's ad .
`` In my nearly five decades of public service , I have never publicly endorsed any political candidate , '' Fauci said .
`` The comments attributed to me without my permission in the GOP campaign ad were taken out of context from a broad statement I made months ago about the efforts of federal public health @ @ @ @ @ @ @ can be seen below , features Fauci appearing to praise the Trump administration 's COVID-19 response , insisting `` I ca n't imagine that anybody could be doing more . ''
That quote came from a Fox News interview in March during which Fauci praised the White House Coronavirus Task Force .
`` Since the beginning , that we even recognized what this was , I have been devoting almost full time on this , '' Fauci said in that interview .
`` I 'm down at the White House virtually every day @ @ @ @ @ @ @ every single day .
So , I ca n't imagine that under any circumstances that anybody could be doing more . ''
The White House this weekend blocked Fauci from appearing on ABC 's `` This Week . ''

Dr. Anthony Fauci on Sunday said an advertisement from the Trump campaign that featured a quote from the renowned immunologist was taken out of context, telling CNN's Kaitlan Collins that he did not consent to be the president's ad.
"In my nearly five decades of public service, I have never publicly endorsed any political candidate," Fauci said. "The comments attributed to me without my permission in the GOP campaign ad were taken out of context from a broad statement I made months ago about the efforts of federal public health officials."
The ad, which can be seen below, features Fauci appearing to praise the Trump administration's COVID-19 response, insisting "I can't imagine that anybody could be doing more."
That quote came from a Fox News interview in March during which Fauci praised the White House Coronavirus Task Force.
"Since the beginning, that we even recognized what this was, I have been devoting almost full time on this," Fauci said in that interview. "I'm down at the White House virtually every day with the task force. It's every single day. So, I can't imagine that under any circumstances that anybody could be doing more."
The White House this weekend blocked Fauci from appearing on ABC's "This Week."


alternet--2020-10-11--Regeneron CEO pours cold water on Trump claim antibody cocktail made him 'immune' to COVID

Following his departure from Walter Reed Medical Center on Monday , President Donald J. Trump has repeatedly claimed a cure for COVID-19 : the Regeneron antibody cocktail .
However , Leonard Schleifer , the founder and CEO of Regeneron Pharmaceuticals , said on Sunday that Trump 's positive experience with the antibody cocktail is no reason to claim a cure of the virus .
`` The president 's case is a case of one , and that 's what we call a case report , '' Schleifer told CBS News ' Face the Nation Sunday .
`` And it is @ @ @ @ @ @ @ it 's kind of the weakest evidence that you can get… [ T ] he real evidence about how good a drug is and what it will do on average has to come from these larger clinical trials , these randomized clinical trials , which are the gold standard , and those are ongoing . ''
Schleifer confirmed that the antibody cocktail does create immunity from COVID-19 , but that `` it 's probably going to last you for months '' versus a long-term cure .
Axios reported that Regeneron and Eli Lilly @ @ @ @ @ @ @ , have applied for an emergency use authorization from the FDA .

Following his departure from Walter Reed Medical Center on Monday, President Donald J. Trump has repeatedly claimed a cure for COVID-19: the Regeneron antibody cocktail. However, Leonard Schleifer, the founder and CEO of Regeneron Pharmaceuticals, said on Sunday that Trump's positive experience with the antibody cocktail is no reason to claim a cure of the virus.
"The president's case is a case of one, and that's what we call a case report," Schleifer told CBS News' Face the Nation Sunday. "And it is evidence of what's happening, but it's kind of the weakest evidence that you can get… [T]he real evidence about how good a drug is and what it will do on average has to come from these larger clinical trials, these randomized clinical trials, which are the gold standard, and those are ongoing."
Schleifer confirmed that the antibody cocktail does create immunity from COVID-19, but that "it's probably going to last you for months" versus a long-term cure.
Axios reported that Regeneron and Eli Lilly, which is developing a similar therapy, have applied for an emergency use authorization from the FDA.
Watch the video below.


alternet--2020-10-11--Both parties pour millions more into Alaska's surprisingly competitive Senate race

While Alaska 's U.S. Senate race looked like just an afterthought for both parties as recently as a few months ago , major outside groups on each side are continuing to book millions here just weeks ahead of Election Day .
Politico 's James Arkin reports that a newly established Democratic group called North Star has launched a $ 4 million ad buy in support of Al Gross , an independent who is running as the Democratic nominee .
The first ad stars a local breast cancer survivor , and she takes Republican Sen. Dan Sullivan to task for voting @ @ @ @ @ @ @ to preexisting conditions .
Arkin also reports that the conservative Senate Leadership Fund will spend $ 3.7 million here to protect Sullivan , which would bring the super PAC 's total planned spending for this race to $ 5.3 million .
While SLF 's investment gives Sullivan 's side more firepower , the incumbent is still being very badly outspent .
OpenSecrets reports that Gross ' allies have already spent $ 6.6 million in this race , a figure that does n't yet account for North Star 's new offensive , while the @ @ @ @ @ @ @ $ 1.5 million buy from SLF .
Gross also announced that he raised a massive $ 9 million during the third quarter of 2020—over $ 1 million more that Sullivan brought in during his entire 2014 campaign .
Sullivan has n't announced his own haul , but Arkin writes that his campaign `` has said they expect to be outraised and outspent by a staggering , five-to-one margin . ''
All of this spending comes despite the fact that very few polls have been released here over the last month , though the @ @ @ @ @ @ @ a close race .
In late September , a Harstad Research poll for Al Gross ' allies at Independent Alaska showed Sullivan up just 46-45 .
Donald Trump also led only 47-46 , which is not only a big drop from his 51-37 victory here in 2016 , it would be the closest presidential contest ever in the Last Frontier state , narrowly topping Richard Nixon 's 51-49 win over John F. Kennedy in 1960 .
The local firm Alaska Survey Research also released its own poll recently that showed Sullivan and Trump @ @ @ @ @ @ @

While Alaska's U.S. Senate race looked like just an afterthought for both parties as recently as a few months ago, major outside groups on each side are continuing to book millions here just weeks ahead of Election Day.
Politico's James Arkin reports that a newly established Democratic group called North Star has launched a $4 million ad buy in support of Al Gross, an independent who is running as the Democratic nominee. The first ad stars a local breast cancer survivor, and she takes Republican Sen. Dan Sullivan to task for voting to let insurance companies deny coverage due to preexisting conditions. Arkin also reports that the conservative Senate Leadership Fund will spend $3.7 million here to protect Sullivan, which would bring the super PAC's total planned spending for this race to $5.3 million.
While SLF's investment gives Sullivan's side more firepower, the incumbent is still being very badly outspent. OpenSecrets reports that Gross' allies have already spent $6.6 million in this race, a figure that doesn't yet account for North Star's new offensive, while the only major pro-Sullivan spending was the aforementioned $1.5 million buy from SLF.
Gross also announced that he raised a massive $9 million during the third quarter of 2020—over $1 million more that Sullivan brought in during his entire 2014 campaign. Sullivan hasn't announced his own haul, but Arkin writes that his campaign "has said they expect to be outraised and outspent by a staggering, five-to-one margin."
All of this spending comes despite the fact that very few polls have been released here over the last month, though the few numbers we've seen have shown a close race. In late September, a Harstad Research poll for Al Gross' allies at Independent Alaska showed Sullivan up just 46-45. Donald Trump also led only 47-46, which is not only a big drop from his 51-37 victory here in 2016, it would be the closest presidential contest ever in the Last Frontier state, narrowly topping Richard Nixon's 51-49 win over John F. Kennedy in 1960.
The local firm Alaska Survey Research also released its own poll recently that showed Sullivan and Trump up 48-44 and 50-46, respectively.


alternet--2020-10-11--How decades-old conservative 'counterintelligentsia' paved the way for Trump doctor's partisan propa

How decades-old conservative 'counterintelligentsia' paved the way for Trump doctor's partisan propaganda

Last Sunday morning , the medical team supervising President Trump 's care at Walter Reed Medical Center returned to the microphones to address misinformation they had divulged the previous day .
The president 's physician , Dr. Sean Conley , admitted he had obfuscated the fact that Trump had been administered oxygen and explained his misleading statements by saying he was `` trying to reflect the upbeat attitude '' of Trump and `` did n't want to give any information that might steer the course of illness in another direction… '' This bizarre episode capped off a truly strange weekend @ @ @ @ @ @ @ of the United States of America , the most powerful man in the world , was puzzled over as one conflicting account after another battled for precedence .
It was reminiscent of the propaganda-laden crises of authoritarian states and failed nations , times in which leaders were either perfectly healthy or functionally dead and crises either under control or raging unabated .
The disturbing truth is that this seemingly inexplicable moment is the result of a decades-long war over the very nature of reality within America .
I had struggled to understand this @ @ @ @ @ @ @ a Nation Conquered the World but Failed Its People '' and finding that modern American history has been dominated by this conflict and the Republican Party 's insistence on constructing an alternate reality to aid in its consolidation of power .
It is no accident that the Republican Party has evolved into Trumpism .
After decades of manipulation , including the vilification of academics and experts and an all-out onslaught on science , it was sadly inevitable for the GOP to reach the point where even the medical condition of the president is @ @ @ @ @ @ @ .
In the post-Vietnam era , this project was best summarized by William E. Simon , a businessman who served as Richard Nixon 's secretary of the Treasury , who wrote in his influential 1978 book `` A Time for Truth '' that liberals had so dominated cultural conversation with their array of academics and experts that it was necessary for conservatives to create their own `` powerful counterintelligentsia . ''
This followed on the heels of the civil rights , free speech and antiwar movements that found purchase on college campuses and @ @ @ @ @ @ @ '70s .
What followed was a backlash against the academy itself and a desperate attempt to forge an alternate establishment that would protect Republican power and capitalist interests .
This would lead to the creation of an army of right-wing think tanks like the Heritage Foundation and the Cato Institute , bodies that offered opinions troubling scientific and academic consensus while preparing pundits to challenge experts in the public arena .
Corporate and private donations were mobilized to tempt experts into espousing anti-establishment views .
Even while major corporations internally distributed their own @ @ @ @ @ @ @ and carcinogenic products like cigarettes , large-scale discrediting operations were undertaken to inject doubt in the public mind .
To assist this effort , the American right founded a powerful media operation that began with print and moved to the airwaves with talk radio , cable news and eventually websites and social media networks dedicated to proliferating misinformation .
With the death of the FCC 's `` fairness doctrine '' in 1987 — a rule that had guaranteed equal time to opposing viewpoints in the media — the right was free to construct @ @ @ @ @ @ @ supporters and adherents could reside within , beyond the reach of experts , science or even a passing conflicting opinion .
There is a line to be drawn from Simon 's urge to push `` non-egalitarian '' voices in order to protect Republican and moneyed interests to our peculiar moment .
The reliance on politically favorable opinions and personally advantageous pseudo-science has given room to misinformation , disinformation and the proliferation of conspiracy theories that `` feel real '' to people while existing solely as weaponized narratives .
It is this war on @ @ @ @ @ @ @ attacks on scientists urging the wearing of masks , and to the `` miracle cures '' of hydroxychloroquine , UV light and household cleansers , not to mention the empty promise by a president — who had been caught on tape admitting he knew better — that a generational pandemic might simply solve itself , saying , `` One day , it 's like a miracle , it will simply disappear . ''
But with more than 214,000 deaths so far during the coronavirus pandemic and the disastrous consequences of climate change as @ @ @ @ @ @ @ West Coast — not to mention an ailing president who is either all better , improving or gravely ill , or maybe all three at once — it is time to recognize the manipulation that has occurred and the necessity to move beyond a war on objective reality .
As perhaps even President Trump 's partisan doctors could be made to admit , propaganda simply does not exist at the microscopic level .

Last Sunday morning, the medical team supervising President Trump's care at Walter Reed Medical Center returned to the microphones to address misinformation they had divulged the previous day. The president's physician, Dr. Sean Conley, admitted he had obfuscated the fact that Trump had been administered oxygen and explained his misleading statements by saying he was "trying to reflect the upbeat attitude" of Trump and "didn't want to give any information that might steer the course of illness in another direction…"
This bizarre episode capped off a truly strange weekend in which the condition of the president of the United States of America, the most powerful man in the world, was puzzled over as one conflicting account after another battled for precedence. It was reminiscent of the propaganda-laden crises of authoritarian states and failed nations, times in which leaders were either perfectly healthy or functionally dead and crises either under control or raging unabated.
The disturbing truth is that this seemingly inexplicable moment is the result of a decades-long war over the very nature of reality within America. I had struggled to understand this before writing "American Rule: How a Nation Conquered the World but Failed Its People" and finding that modern American history has been dominated by this conflict and the Republican Party's insistence on constructing an alternate reality to aid in its consolidation of power.
It is no accident that the Republican Party has evolved into Trumpism. After decades of manipulation, including the vilification of academics and experts and an all-out onslaught on science, it was sadly inevitable for the GOP to reach the point where even the medical condition of the president is subject to relentless propaganda and subjective pseudo-science.
In the post-Vietnam era, this project was best summarized by William E. Simon, a businessman who served as Richard Nixon's secretary of the Treasury, who wrote in his influential 1978 book "A Time for Truth" that liberals had so dominated cultural conversation with their array of academics and experts that it was necessary for conservatives to create their own "powerful counterintelligentsia." This followed on the heels of the civil rights, free speech and antiwar movements that found purchase on college campuses and among academic circles in the 1960s and '70s. What followed was a backlash against the academy itself and a desperate attempt to forge an alternate establishment that would protect Republican power and capitalist interests.
This would lead to the creation of an army of right-wing think tanks like the Heritage Foundation and the Cato Institute, bodies that offered opinions troubling scientific and academic consensus while preparing pundits to challenge experts in the public arena. Corporate and private donations were mobilized to tempt experts into espousing anti-establishment views. Even while major corporations internally distributed their own studies of scientifically-proven threats like climate change and carcinogenic products like cigarettes, large-scale discrediting operations were undertaken to inject doubt in the public mind.
To assist this effort, the American right founded a powerful media operation that began with print and moved to the airwaves with talk radio, cable news and eventually websites and social media networks dedicated to proliferating misinformation. With the death of the FCC's "fairness doctrine" in 1987 — a rule that had guaranteed equal time to opposing viewpoints in the media — the right was free to construct a self-sustaining, impenetrable alternate reality its supporters and adherents could reside within, beyond the reach of experts, science or even a passing conflicting opinion.
There is a line to be drawn from Simon's urge to push "non-egalitarian" voices in order to protect Republican and moneyed interests to our peculiar moment. The reliance on politically favorable opinions and personally advantageous pseudo-science has given room to misinformation, disinformation and the proliferation of conspiracy theories that "feel real" to people while existing solely as weaponized narratives.
It is this war on science and expertise that gave rise to attacks on scientists urging the wearing of masks, and to the "miracle cures" of hydroxychloroquine, UV light and household cleansers, not to mention the empty promise by a president — who had been caught on tape admitting he knew better — that a generational pandemic might simply solve itself, saying, "One day, it's like a miracle, it will simply disappear."
But with more than 214,000 deaths so far during the coronavirus pandemic and the disastrous consequences of climate change as evident as the flaming maelstroms on the West Coast — not to mention an ailing president who is either all better, improving or gravely ill, or maybe all three at once — it is time to recognize the manipulation that has occurred and the necessity to move beyond a war on objective reality. As perhaps even President Trump's partisan doctors could be made to admit, propaganda simply does not exist at the microscopic level.


alternet--2020-10-11--This race could have a major impact on climate change — and give Texas Democrats a statewide win

As Lone Star Democrats seek their first statewide victory in more than a quarter century , their best hope may be Chrysta Castañeda , who 's running for a spot on an agency many people have n't heard of : the Texas Railroad Commission .
Despite the name , the commission does n't actually oversee trains , but it does have jurisdiction over something even more important in Texas : the state 's energy industry ( oversight of the rails was handed to the state 's Department of Transportation in 2005 ) .
The panel , often known as the @ @ @ @ @ @ @ of three members , each elected statewide for six-year terms .
The last time a Democrat won a seat on the board was in 1990 , when former Rep. Bob Krueger beat a Republican opponent by 56-40 margin .
Krueger wound up resigning to accept an appointment to the U.S. Senate when Lloyd Bentsen became Bill Clinton 's Treasury secretary , and Republicans comfortably beat his appointed successor in 1994 .
Ever since , the GOP has held all three seats , but Republicans were already preparing for a serious battle this year—which @ @ @ @ @ @ @ situation even worse .
Republican Ryan Sitton , who first won a slot on the RRC in 2014 , had stockpiled $ 2 million in his war chest for the general election , but in March , he lost his primary in an absolute shocker to an unknown named Jim Wright , the owner of an oilfield waste disposal company who had raised less than $ 13,000 .
The 55-45 loss was so inexplicable that some political observers wondered if Wright benefited from sharing a name with the one-time speaker of the House @ @ @ @ @ @ @ late Democrat Jim Wright , who died in 2015 .
It 's not such a crazy theory : Perennial candidate Gene Kelly won multiple Texas primaries in the previous decade because voters had him confused with the beloved dancer .
Whatever the explanation , though , Wright 's victory has left Republicans with a suddenly open seat and a badly flawed candidate .
The RRC—the very body that Wright wants to join—fined him $ 182,000 for improper storage of hazardous waste in 2017 , and he 's been sued by his former business @ @ @ @ @ @ @ .
Castañeda , an oil and gas attorney , took aim at Wright for his record in her first ad of the race , which went up last month , but the main topic she 's focusing on is the issue of `` flaring . ''
That refers to the practice of oil producers burning off unwanted natural gas from their wells rather than capturing it for later use , a process that is both environmentally harmful and economically wasteful .
It 's also against the law—unless a driller is granted a special @ @ @ @ @ @ @ out last year .
As Castañeda notes , such permits can only be granted if all three members of the commission agree , meaning she could single-handedly put an end to flaring even if Republicans still hold a nominal 2-1 majority on the board next year .
With this backdrop , The New Republic recently called this race `` this year 's most important election for American climate policy . ''
It could also finally put an end to the longest statewide losing streak for Democrats anywhere in the nation .

As Lone Star Democrats seek their first statewide victory in more than a quarter century, their best hope may be Chrysta Castañeda, who's running for a spot on an agency many people haven't heard of: the Texas Railroad Commission.
Despite the name, the commission doesn't actually oversee trains, but it does have jurisdiction over something even more important in Texas: the state's energy industry (oversight of the rails was handed to the state's Department of Transportation in 2005). The panel, often known as the "RRC," is made up of three members, each elected statewide for six-year terms.
The last time a Democrat won a seat on the board was in 1990, when former Rep. Bob Krueger beat a Republican opponent by 56-40 margin. Krueger wound up resigning to accept an appointment to the U.S. Senate when Lloyd Bentsen became Bill Clinton's Treasury secretary, and Republicans comfortably beat his appointed successor in 1994.
Ever since, the GOP has held all three seats, but Republicans were already preparing for a serious battle this year—which, ironically, might have made their situation even worse. Republican Ryan Sitton, who first won a slot on the RRC in 2014, had stockpiled $2 million in his war chest for the general election, but in March, he lost his primary in an absolute shocker to an unknown named Jim Wright, the owner of an oilfield waste disposal company who had raised less than $13,000.
The 55-45 loss was so inexplicable that some political observers wondered if Wright benefited from sharing a name with the one-time speaker of the House who hailed from Fort Worth, the late Democrat Jim Wright, who died in 2015. It's not such a crazy theory: Perennial candidate Gene Kelly won multiple Texas primaries in the previous decade because voters had him confused with the beloved dancer.
Whatever the explanation, though, Wright's victory has left Republicans with a suddenly open seat and a badly flawed candidate. The RRC—the very body that Wright wants to join—fined him $182,000 for improper storage of hazardous waste in 2017, and he's been sued by his former business partners for fraud stemming from the mess.
Castañeda, an oil and gas attorney, took aim at Wright for his record in her first ad of the race, which went up last month, but the main topic she's focusing on is the issue of "flaring." That refers to the practice of oil producers burning off unwanted natural gas from their wells rather than capturing it for later use, a process that is both environmentally harmful and economically wasteful.
It's also against the law—unless a driller is granted a special permit, of which 7,000 were handed out last year. As Castañeda notes, such permits can only be granted if all three members of the commission agree, meaning she could single-handedly put an end to flaring even if Republicans still hold a nominal 2-1 majority on the board next year.
With this backdrop, The New Republicrecently called this race "this year's most important election for American climate policy." It could also finally put an end to the longest statewide losing streak for Democrats anywhere in the nation.


alternet--2020-10-11--Federal court blocks Trump's effort to use $3.6 billion in military funds for border wall constructi

Federal court blocks Trump's effort to use $3.6 billion in military funds for border wall construction

A federal appeals court ruled late Friday that President Donald Trump 's use of his emergency powers to build his long-promised border wall with military funds is illegal , striking a blow to one of his signature campaign promises just weeks before the November election .
The 2-1 decision from the 9th U.S .
Circuit Court of Appeals comes as $ 3.6 billion was slated for construction of about a dozen projects , including two projects in the Laredo and El Paso areas .
The money was diverted from funds dedicated for military construction after the president declared a national @ @ @ @ @ @ @ funds .
The projects in Texas would have covered more than 60 miles , according to the American Civil Liberties Union .
“ The courts have once again confirmed what everyone knows : Trump 's fake 'national emergency ' was just another pretext for targeting immigrants and border communities , '' said Dror Ladin , a senior staff attorney with the ACLU 's National Security Project .
“ It 's past time for Trump to finally give up on trying to raid the federal budget for his wasteful and illegal project . ''
@ @ @ @ @ @ @ , was filed last year by the ACLU on behalf of the Sierra Club and Southern Border Communities Coalition .
The ruling Friday upholds a 2019 decision that halted the construction .
But that order was put on hold , said Gloria Smith , the managing attorney at the Sierra Club .
“ The district court was very careful and went ahead and granted an injunction and then stayed his own injunction pending a full resolution of the case , '' she said .
“ So the stay is gone , the injunction @ @ @ @ @ @ @ no construction . ''
Trump 's emergency declaration came after the U.S. Congress allotted about $ 1.4 billion in a 2019 budget bill for wall construction .
But Trump balked at the amount after he requested nearly $ 6 billion for the effort .
Congress tried twice to stop the national emergency declaration , but the president vetoed both efforts .
Friday 's decision comes as the Trump administration is in an 11th-hour push to speed up construction of barriers on the southern border before the Nov. 3 election .
Construction has increased @ @ @ @ @ @ @ nearly twice the daily rate since the start of 2020 , The Washington Post reported late last month .
But Texas has been a persistent wrench in the president 's plans because , unlike in other border states , most of the land eyed for border barriers in Texas is on privately owned land .
That means the Department of Homeland Security must secure some of that land through eminent domain , a process that can take long if landowners choose to file suit against the federal government .
Smith said the plaintiffs @ @ @ @ @ @ @ future battles , including possible arguments before the U.S. Supreme Court because there are other aspects of the case that the administration can challenge .
“ The administration , the Department of Homeland Security , needed to identify the provisions in the U.S. Code that it would rely on to take those monies , '' she said .
“ As we started to learn that , and as we started identifying specific project sites , we would amend our complaint with more specificity .
So there are offshoots of the main lawsuit .
@ @ @ @ @ @ @ the ACLU of Texas , said the Supreme Court could issue an emergency stay without making a final determination on the case before the Nov. 3 election .
“ They could do that , but they would need a majority of the court to do it .
But because at the moment we only have eight justices , we have to see how that would shake out , '' he said .

A federal appeals court ruled late Friday that President Donald Trump's use of his emergency powers to build his long-promised border wall with military funds is illegal, striking a blow to one of his signature campaign promises just weeks before the November election.
The 2-1 decision from the 9th U.S. Circuit Court of Appeals comes as $3.6 billion was slated for construction of about a dozen projects, including two projects in the Laredo and El Paso areas. The money was diverted from funds dedicated for military construction after the president declared a national emergency in February 2019 to tap the funds. The projects in Texas would have covered more than 60 miles, according to the American Civil Liberties Union.
“The courts have once again confirmed what everyone knows: Trump's fake 'national emergency' was just another pretext for targeting immigrants and border communities," said Dror Ladin, a senior staff attorney with the ACLU's National Security Project. “It's past time for Trump to finally give up on trying to raid the federal budget for his wasteful and illegal project."
The lawsuit, Sierra Club v. Trump, was filed last year by the ACLU on behalf of the Sierra Club and Southern Border Communities Coalition. The ruling Friday upholds a 2019 decision that halted the construction. But that order was put on hold, said Gloria Smith, the managing attorney at the Sierra Club.
“The district court was very careful and went ahead and granted an injunction and then stayed his own injunction pending a full resolution of the case," she said. “So the stay is gone, the injunction is back in force, which means no construction."
Trump's emergency declaration came after the U.S. Congress allotted about $1.4 billion in a 2019 budget bill for wall construction. But Trump balked at the amount after he requested nearly $6 billion for the effort. Congress tried twice to stop the national emergency declaration, but the president vetoed both efforts.
Friday's decision comes as the Trump administration is in an 11th-hour push to speed up construction of barriers on the southern border before the Nov. 3 election. Construction has increased to about 2 miles per day, nearly twice the daily rate since the start of 2020, The Washington Post reported late last month.
But Texas has been a persistent wrench in the president's plans because, unlike in other border states, most of the land eyed for border barriers in Texas is on privately owned land. That means the Department of Homeland Security must secure some of that land through eminent domain, a process that can take long if landowners choose to file suit against the federal government.
Smith said the plaintiffs were celebrating Saturday but are prepared for future battles, including possible arguments before the U.S. Supreme Court because there are other aspects of the case that the administration can challenge.
“The administration, the Department of Homeland Security, needed to identify the provisions in the U.S. Code that it would rely on to take those monies," she said. “As we started to learn that, and as we started identifying specific project sites, we would amend our complaint with more specificity. So there are offshoots of the main lawsuit."
David Donatti, an attorney with the ACLU of Texas, said the Supreme Court could issue an emergency stay without making a final determination on the case before the Nov. 3 election.
“They could do that, but they would need a majority of the court to do it. But because at the moment we only have eight justices, we have to see how that would shake out," he said.