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Mitch McConnell doesn't like people poking around the Supreme Court
That's not why Law Dork is going to keep doing it, but it would honestly be a good enough of a reason. Also: GOP AGs are yelling at Target. And: Law Dork is all over the place.
In The Washington Post on Monday, Senate Minority Leader Mitch McConnell tried to gaslight America about the Supreme Court — an act that the Post’s opinion pages gladly went along with.
In a piece headlined, “Mitch McConnell: Neither party can count on the Supreme Court to be its ally,“ McConnell played make-believe for nearly 800 words, hoping that if he spouted off some meaningless statistics and told us that those stats prove that “[t]he court adheres to the Constitution and weighs each case on its merits,” everyone would just nod, think he must be correct, and move on.
It’s ludicrous, of course.
Half of the piece — 400 words — is McConnell’s statistics game, where he attempts to show America that the court isn’t doing what it’s doing by pointing to overall statistics from the term. Things like, “[O]nly about 9 percent of this term’s cases produced the 6-3 decision commentators use to warn of hyperpolarization on the court.“
Such an approach is ultimately meaningless because it lumps ideological cases with technical ones, it ignores the court’s control over its docket, and it obscures the fact that some of the “disagreements” among the conservatives only exist because some justices (ahem, Justices Clarence Thomas and Sam Alito) are trying to push the law even further right — almost shifting the Overton window in real time, as I wrote previously.
The truth is that the court’s Republican appointees pushed out extremist opinions in several cases and held back from taking extreme action in a handful of others.
McConnell uses that to suggest we’ve got ourselves some sort of idyllic court that’s just calling the balls and strikes. Further, he then takes that to suggest that criticism of the court is unjustified, as are efforts to hold the justices accountable for their actions.
McConnell has launched this half-hearted statistics lesson as a preemptive attack on Democrats’ announced July 20 mark up and committee vote on Supreme Court ethics legislation.
“Democrats on the Senate Judiciary Committee are trying to tell a coequal branch of government how to manage its internal operations, ostensibly to clean up its ‘ethics,’” McConnell wrote, ignoring the history of congressional legislation relating to oversight — of both the executive and judicial branches. (And ignoring the latest story of Thomas’s cozy relationships with rich people who do things for him.)
If McConnell can use the opinion pages of the Post to claim to America that the Supreme Court should not be scrutinized because it “weighs each case on its merits,” I will certainly use this morning’s Law Dork to tell my readers that Supreme Court scrutiny is essential and must increase.
To the extent there weren’t even more 6-3 “hyperpolarization“ rulings from the court this term (which, again, generally meant pulling American law much further to the right, while “liberal wins” generally only meant keeping the status quo), I would argue that the scrutiny the court has faced — post-Dobbs fallout, ethics investigations, and greater attention placed on the court as a political institution — helped to create an environment where some members of the court have realized that extremism can’t always win if the court is to keep any legitimacy.
In other words, while McConnell misleadingly used stats from this term to claim we have an “unpredictable” court, I would use those stats and a closer look at the rulings themselves to claim that public and congressional attention on the court and reporting on the court that treats it like any other governmental body is having an effect.
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Todd tendentiously targets Target
Over at Popular Information, Judd Legum dug into a topic I’ve been eyeing — and I’m so glad that he did because I’d not had the time to do anything with it.
It’s the embarrassing letter that seven Republican state attorneys general, led by Indiana Attorney General Todd Rokita, sent to Target about their Pride merchandise.
Honestly, truly embarrassing stuff from Rokita borne of desperation to score cheap political points after his office has thus far failed miserably in its defense of the state’s new law trying to ban gender-affirming medical care for minors. (The law is currently enjoined by a Trump-appointed judge.)
Go read the whole thing from Judd.
Law Dork appearances
As the Supreme Court’s term came to a close and LGBTQ litigation developments have become constant, I’ve been busy — both here and elsewhere.
Over the past two weeks, I joined Andy Levy on The New Abnormal podcast to talk Jones v. Hendrix, spoke about my career and court coverage at DC alumni events for The Ohio State University (Go Buckeyes!) and the University of Chicago (They just like me!), joined Symone Sanders-Townsend hosting The 11th Hour on MSNBC to talk about the aftermath of the court’s affirmative action ruling and more, was a guest on KALW’s Your Call out in the Bay Area (twice!) to discuss the court’s rulings and the broader politics of the court, and joined The Tennessee Holler on Monday to talk about the Sixth Circuit’s anti-trans ruling.
Now, at 2:30 p.m. ET Tuesday — today! — I’ll be moderating the American Constitution Society’s national Supreme Court review with a really exciting panel.
The event is free and virtual, so, sign up now and join us later today!
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