monitoring Trump and relevant contemporary events

Today began with a breathless story from the tabloid paper the New York Post alleging that, according to Trump’s lawyer Rudy Giuliani, Joe Biden’s son, Hunter Biden, had dropped off three laptops for repair in 2019 and had never picked them up again, and that the FBI subpoenaed the hard drives, but before turning them over the repairman had made a copy of the material on them, and he gave it to Giuliani, and it had incriminating material on it….

And yes, it’s as ridiculous as it sounds. Over the course of the day, real journalists have demolished the story, but it is still of note as news because of what its timing might mean.

First of all, the Trump campaign is in trouble. Polls show the president down by significant numbers, and the voters he has been trying to suppress are turning out in droves. Today Massachusetts Governor Charlie Baker, a Republican, issued a statement saying he “cannot support Donald Trump for President,” and the Biden campaign announced that it raised an eye-popping $383 million in September alone, a historic record which comes on top of the historic record of $364.5 million it set in August. This means Biden has $432 million on hand for the last month of the election. Dumping a story like this Hunter Biden fiction in a tabloid, which has wide reach among low-information voters, is a cheap fix for the Trump campaign. It might shore him up among those who will never see the wide debunking of the story.

Second, though, the timing of the story suggests it was designed to distract from the third and final day of Amy Coney Barrett’s testimony before the Senate Judiciary Committee in her hearing for confirmation to the U.S. Supreme Court. The hearings have not been going particularly well for the Republicans. They have the votes to confirm her, and confirm her they will, but her insistence that she is an “originalist,” along with her refusal to answer any questions on topics relevant to the present, including on racial prejudice, climate change, voter suppression, and so on, have made her extremism clear.

Democrats have hammered home that putting Barrett on the court at this moment is an extraordinary power grab, and voters seem to agree. Turning attention away from the hearings would be useful for the Republicans when voters are on their way to the polls.

And yet, Republicans are determined to force her appointment through, even though it threatens to delegitimize the Supreme Court.

To what end?

The originalism of scholars like Barrett is an answer to the judges who, in the years after World War Two, interpreted the law to make American democracy live up to its principles, making all Americans equal before the law. With the New Deal in the 1930s, the Democrats under Franklin Delano Roosevelt had set out to level the economic playing field between the wealthy and ordinary Americans. They regulated business, provided a basic social safety net, and promoted infrastructure.

After the war, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, the Supreme Court tried to level the social playing field between Americans through the justices' interpretation of the law. They tried to end segregation through decisions like the 1954 Brown v. Board of Education of Topeka, Kansas, which prohibited racial segregation in public schools. They protected the rights of accused prisoners to legal counsel, and the right of married couples to use contraception in 1965 (it had previously been illegal). They legalized interracial marriage in 1967. In 1973, they tried to give women control over their own reproduction by legalizing abortion with the Roe v. Wade decision.

The focus of the Supreme Court in these years was not simply on equality before the law. The justices also set out to make the government more responsible to its citizens. It required that electoral districts be roughly equal in population, so that a state could not have one district of a few hundred people with another with a hundred thousand, thus establishing the principle of “one man, one vote.”

These were not partisan decisions, or to the degree they were, they were endorsed primarily by Republicans. The Chief Justices of the Court during these years were Republicans Earl Warren and Warren Burger.

Today’s “originalists” are trying to erase this whole era of legislation and legal decisions. They argue that justices who expanded civil rights and democratic principles were engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. They say that justices in this era, and those like them in the present—people like Ruth Bader Ginsburg, who protected women’s equality before the law-- were “legislating from the bench.” They hold tight to the argument that the Constitution is limited by the views of the Founders, and that the government can do nothing that is not explicitly written in that 1787 document.

Their desire to roll back the changes of the modern era serves traditional concepts of society and evangelical religion, of course, but it also serves a radical capitalism. If the government is as limited as they say, it cannot protect the rights of minorities or women. But it also cannot regulate business. It cannot provide a social safety net, or promote infrastructure, things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses. In short, under the theory of originalism, the government cannot do anything to rein in corporations or the very wealthy.

As Senator Sheldon Whitehouse (D-RI), who is a member of the Senate Judiciary Committee, illustrated in careful detail at the Barrett hearings yesterday, it is no accident that Barrett’s nomination has the support of secret dark money donors. She will be the key vote to having a solid pro-corporate Supreme Court.

The Trump administration has made it clear that it favors private interests over public ones, combatting regulation and welfare programs, as well as calling for private companies to take over public enterprises like the United States Postal Service. But the New Deal government and the rights enshrined by the Warren and Burger courts are popular in America, so it is imperative for today’s radical Republicans that the courts cement their reworking of the country.

Former White House Counsel Don McGahn explained that the Trump administration wants to skew the judiciary to support its economic agenda. “There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin,” he said.

The administration has backed pro-corporate judges whose nominations are bolstered by tens of millions of dollars worth of political advertising paid for by dark money. Trump's Supreme Court appointees have joined other Republican justices on the court, where they consistently prop up business interests—such as with the 2010 Citizens United decision allowing unlimited corporate money in elections—and attack voting rights, as in 2013 with the Shelby v. Holder decision gutting the 1965 Voting Rights Act.

In 2014, New York Times journalist Linda Greenhouse wrote that it is “impossible to avoid the conclusion that the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda.”

That ideological agenda has profound implications for our society as we know it, beginning with the Affordable Care Act, which the court is slated to take up on November 10, just a week after the election. But it is not just our healthcare that is at stake. At risk is the whole infrastructure of laws protecting our civil rights, as well as our democracy.

her insistence that she is an "originalist," along with her refusal to answer any questions on topics relevant to the present, including on racial prejudice, climate change, voter suppression, and so on, have made her extremism clear.

They hold tight to the argument that the Constitution is limited by the views of the Founders, and that the government can do nothing that is not explicitly written in that 1787 document.

In 2014, New York Times journalist Linda Greenhouse wrote that it is "impossible to avoid the conclusion that the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda."

real journalists have demolished the story,

BREAKING: Biden-Harris Campaign Staffers Test Positive for COVID-19

The Biden-Harris campaign has blamed Trump’s supposedly lax attitude toward COVID-19 for himself, a number of White House officials, and campaign members contracting the virus. It remains to be seen how many staffers will end up testing positive or if either candidate will test positive. It’s perhaps possible that Kamala Harris’s decision to participate in the Amy Coney Barrett hearings by video was a stunt or due to her being aware that her own staffers had been exposed to the virus and that she may have been as well.

Alongside growing controversy over judicial nominations, court reform and Covid-19 policies, American law is in the midst of a little-noticed paradigm shift in courts’ treatment of public health measures.

The Republican Party’s campaign to take over the federal and state courts is quietly upending a long and deeply embedded tradition of upholding vital public health regulations. The result has been a radically novel and potentially catastrophic sequence of decisions blocking state responses to the coronavirus pandemic.

For centuries, American constitutional law granted state governments broad public health powers. “Salus populi suprema lex,” the old saying went: The health of the people is the supreme law. Such authority went back to the beginning of the Republic. In the famous 1824 case of Gibbons v. Ogden, Chief Justice John Marshall defended the “acknowledged power of a State to provide for the health of its citizens.” States, he explained, were empowered to enact “inspection laws, quarantine laws” and “health laws of every description.”

Lemuel Shaw of Massachusetts, who was arguably the most respected state judge of the 19th century, supported vast public health powers and described states’ authority to control epidemics as central to the sovereign power of government. The Alabama Supreme Court agreed, citing the old dictum of salus populi, and courts in states like Georgia and Louisiana followed. In New York, the state’s highest court upheld disruptive health regulations like a ban on burials in urban church cemeteries. After the Civil War, New York’s courts upheld the Legislature’s decision to vest local boards with “absolute control over persons and property, so far as the public health was concerned.”

In 1900, when a suspected outbreak of bubonic plague led San Francisco authorities to quarantine the city’s Chinatown neighborhood, the U.S. Court of Appeals for the Ninth Circuit struck down quarantine and inoculation provisions that irrationally targeted Chinese residents, but ratified the city’s power to quarantine in general.

Five years later, the U.S. Supreme Court in Jacobson v. Massachusetts upheld mandatory vaccination programs. States, the court ruled, were empowered to establish general regulations “as will protect the public health.” As in the two Chinatown cases, however, the court aimed to preserved its authority to intervene in narrow circumstances. Justice John Marshall Harlan’s opinion observed that certain “arbitrary and oppressive” vaccinations might be unconstitutional.

Modest and careful judicial intervention was the norm in courts across the country. When courts in Illinois, Kansas, Michigan and Wisconsin overturned policies prohibiting unvaccinated children from attending school, for example, they did so on the ground that their state legislatures had not authorized such policies. Such decisions respected the salus populi principle by leaving the legislatures empowered to mandate vaccination if they saw fit to do so.

The basic outlines of this approach remained in place for more than two centuries. Today, however, the tradition of salus populi is in collapse. In state and federal courts alike, Republican-appointed and Republican-elected judges are upsetting the long-established consensus.

This month, a bare majority of four Republican-appointed justices on the Michigan Supreme Court struck down the state’s 75-year-old emergency powers law as an “unlawful delegation of legislative power to the executive.” In dissent, Chief Justice Bridget McCormack (who was endorsed by Democrats when she campaigned for election to the court) correctly identified the majority’s reasoning as “armchair history” that set aside decades of precedent.

Last month, a federal district judge in Pennsylvania appointed by President Trump struck down the state’s business closure rules and its limits on gatherings. The judge in the case, William Stickman, revived hoary ideas about freedom of contract and laissez-faire economic policy that once led the courts to strike down protective labor legislation like wage and hour laws.

And back in the spring, four justices connected to the Republican Party on the Wisconsin Supreme Court overturned their state’s common-sense emergency Covid-19 rules over the dissents of three colleagues.

The U.S. Supreme Court threatens to get into the action, too. In May, four conservative justices (Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh) dissented from an order in South Bay United Pentecostal Church v. Newsom allowing California’s Covid-19-related restrictions to remain in place for gatherings at places of worship. Then, in Calvary Chapel Dayton Valley v. Sisolak, decided at the end of July, those same justices dissented from a similar order leaving Nevada’s restrictions intact.

Next month, the court is scheduled to hear arguments on a startling and widely criticized decision from the U.S. Court of Appeals for the Fifth Circuit in Texas last year that offers yet another opportunity to strike down the Affordable Care Act. The health care of millions could be cast into question even as the pandemic rages.

All of this is a sharp departure from a long history of judicial solicitude toward state powers during epidemics. In the past, when epidemics have threatened white Americans and those with political clout, courts found ways to uphold broad state powers. Now a new generation of judges, propelled by partisan energies, look to deprive states of the power to fight for the sick and dying in a pandemic in which the victims are disproportionately Black and brown.

The results are already devastating.

Modest and careful judicial intervention was the norm in courts across the country. When courts in Illinois, Kansas, Michigan and Wisconsin overturned policies prohibiting unvaccinated children from attending school, for example, they did so on the ground that their state legislatures had not authorized such policies. Such decisions respected the salus populi principle by leaving the legislatures empowered to mandate vaccination if they saw fit to do so.

The basic outlines of this approach remained in place for more than two centuries. Today, however, the tradition of salus populi is in collapse. In state and federal courts alike, Republican-appointed and Republican-elected judges are upsetting the long-established consensus.

This month, a bare majority of four Republican-appointed justices on the Michigan Supreme Court struck down the state's 75-year-old emergency powers law as an "unlawful delegation of legislative power to the executive." In dissent, Chief Justice Bridget McCormack (who was endorsed by Democrats when she campaigned for election to the court) correctly identified the majority's reasoning as "armchair history" that set aside decades of precedent.

Quote:

CDC Study Finds Overwhelming Majority Of People Getting Coronavirus Wore Masks

Quote:

A Centers for Disease Control report released in September shows that masks and face coverings are not effective in preventing the spread of COVID-19, even for those people who consistently wear them.

A study conducted in the United States in July found that when they compared 154 “case-patients,” who tested positive for COVID-19, to a control group of 160 participants from the same health care facility who were symptomatic but tested negative, over 70 percent of the case-patients were contaminated with the virus and fell ill despite “always” wearing a mask.

Must be Trump's fault.
https://thefederalist.com/2020/10/12/cdc-study-finds-overwhelming-majority-of-people-getting-coronavirus-wore-masks/

More-rigorous analyses offer direct evidence (that masks work against the pandemic). A preprint study* posted in early August (and not yet peer reviewed), found that weekly increases in per-capita mortality were four times lower in places where masks were the norm or recommended by the government, compared with other regions. Researchers looked at 200 countries, including Mongolia, which adopted mask use in January and, as of May, had recorded no deaths related to COVID-19.

*Leffler, C. T. et al. Preprint at medRxiv
Association of country-wide coronavirus mortality with demographics, testing, lockdowns, and public wearing of masks. Update August 4, 2020.

Confidence in masks grew in June with news about two hair stylists in Missouri who tested positive for COVID-19**. Both wore a double-layered cotton face covering or surgical mask while working. And although they passed on the infection to members of their households, their clients seem to have been spared (more than half reportedly declined free tests). Other hints of effectiveness emerged from mass gatherings. At Black Lives Matter protests in US cities, most attendees wore masks. The events did not seem to trigger spikes in infections***, yet the virus ran rampant in late June at a Georgia summer camp, where children who attended were not required to wear face coverings3. Caveats abound: the protests were outdoors, which poses a lower risk of COVID-19 spread, whereas the campers shared cabins at night, for example.

**: PubMed:
Absence of Apparent Transmission of SARS-CoV-2 from Two Stylists After Exposure at a Hair Salon with a Universal Face Covering Policy - Springfield, Missouri, May 2020

***: Dave, D. M., Friedson, A. I., Matsuzawa, K., Sabia, J. J. & Safford, S. Black Lives Matter Protests, Social Distancing, and COVID-19 NBER Working Paper 27408 (National Bureau of Economic Research, 2020).

Gandhi co-authored a paper**** published in late July suggesting that masking reduces the dose of virus a wearer might receive, resulting in infections that are milder or even asymptomatic. A larger viral dose results in a more aggressive inflammatory response, she suggests.

****:
Masks Do More Than Protect Others During COVID-19: Reducing the Inoculum of SARS-CoV-2 to Protect the Wearer

...over 70 percent of the case-patients were contaminated with the virus and fell ill despite “always” wearing a mask.

To be clear, the science supports using masks, with recent studies suggesting that they could save lives in different ways: research shows that they cut down the chances of both transmitting and catching the coronavirus, and some studies hint that masks might reduce the severity of infection if people do contract the disease.

Adults with confirmed COVID-19 (case-patients) were approximately twice as likely as were control-participants to have reported dining at a restaurant in the 14 days before becoming ill. In addition to dining at a restaurant, case-patients were more likely to report going to a bar/coffee shop ... Masks cannot be effectively worn while eating and drinking

Quote:

To be clear, the science supports using masks, with recent studies suggesting that they could save lives in different ways: research shows that they cut down the chances of both transmitting and catching the coronavirus, and some studies hint that masks might reduce the severity of infection if people do contract the disease.

In any case, catching the disease is only half the reason to encourage wearing a mask. Notice, the study doesn't say how many infected mask wearers transmitted the disease to healthy people.

A catastrophic sequence of decisions has blocked states from responding to the pandemic.