Supreme power-grabs are underway

Rewriting the law out of pure ideological fire.

Welcome to a Saturday edition of Progress Report.

We’ve got a packed edition of the newsletter for you tonight, with disparate stories all pointing back to the same reality: Democracy in the United States is in both a perilous and promising position.

Right-wing Republicans are deeply committed to pursuing unpopular policies no matter who they hurt. It’s our job to make sure that the public knows which politicians are corrupt and who is denying them the opportunities they deserve, no matter how granular we have to get to do so. Today, the focus is on state Supreme Courts, direct democracy, health care, and housing.

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Whitney White was less than 30 seconds into her opening statement to the Florida Supreme Court when the interruptions began.

The first justice, smiling and so sorry to have to do this, wondered why Planned Parenthood should be granted standing in a lawsuit over abortion rights. As soon as White explained why an abortion clinic had an interest in the state’s limiting access to abortion and attempted to restart her case, another justice interjected. This one openly question whether women really suffered irreparable harm by being forced by the state to give birth against their will.

The skeptical, cynical one-two from Justices Jamie Grosshans and John Couriel set the tone for the rest of the oral arguments in Planned Parenthood of Southwest and Central Florida v. State of Florida, which challenges the ban on abortion after 15 weeks signed by Gov. Ron DeSantis last year. The stakes of the case, which was heard by the all-conservative court in Tallahassee on Friday, are even higher than the official description indicates, because a ruling in the state’s favor would trigger the six-week abortion ban that DeSantis signed in the middle of the night in April.

I’ve clipped the shambolic opening for you to watch right here:

The justices peppered White, a staff attorney for the ACLU, with one hostile question after another, oftentimes about process or the parties involved in the lawsuit. White answered those questions calmly and succinctly, batting away the disingenuous challenges from the condescending justices, who interrupted, interjected, and displayed a serious disinterest in engaging on the facts of a case that will likely not be decided on them.

Couriel, who has never served as a judge and previously worked in financial and international criminal law, seemed especially out his depth as he tried to substitute incredulousness for pertinent knowledge. As one of Ron DeSantis’s five appointees to the seven-member court, an appreciation for the state’s past jurisprudence probably wasn’t among the top criteria considered when he was selected.

Watching the questioning, it was almost easy to forget that abortion rights have been protected in Florida since the 1980s.

In 1980, just seven years after Roe v. Wade established an intangible constitutional right to privacy, voters in Florida passed an amendment that explicitly added the right to privacy to the state constitution. The state Supreme Court then reaffirmed that abortion care is protected by that right to privacy in a landmark 1989 decision.

The court has upheld that ruling several times over the years, establishing a firm precedent that the current justices seemed determined to ignore.

The chief Justice, Carlos Muñiz, another DeSantis appointee, brought up the Dobbs decision on several occasions, hinting at his eagerness to ignore and overturn longstanding precedents in the same way that the US Supreme Court did when it overturned Roe v. Wade, a ruling that he called an “abomination.”

“Roe v. Wade may have been an abomination, it may have been semantically absurd to talk about that in terms of privacy,” Muñiz said. “But for better or worse, it was part of our cultural lexicon.”

Henry Whitaker, the state’s attorney charged with defending the abortion ban, projected a sense of annoyance throughout the arguments, as if it were beneath him to be defending a law that would turn the Southeastern United States into a barren, Christofascist desert for hundreds of thousands of women in need of medical care every year.

The entire premise of his argument was that the Florida Supreme Court has consistently mixed up the facts over the past 34 years and that he was in a better position to know what exactly what voters were thinking when they voted to ratify the original right to privacy amendment.

When he received a bit of pushback, Whitaker quickly abandoned the legal arguments and defaulted to monstrous right-wing distortions.

“They do not provide a limiting principle to distinguish abortion from infanticide, from euthanasia, from spousal abuse,” Whitaker alleged. “Those are all involved, personal decisions that I suppose the government could be said to be interfering with, in some sense, when the legislature takes action to remedy choices that harm others.”

It was the crudest way possible to make a dishonest point, which is that the right to privacy must have limits so as to not create a loophole that permits barbaric crimes. It’s a shamefully false equivalence that would require an absolutist abolishment of the right to privacy altogether — a longer term goal of the far-right legal movement — and as White noted, Florida has uncontroversial laws against each of the extreme examples that her opposing counsel introduced.

But Whitaker knew his audience, because they were appointed by the same far-right ideologue who signed the law in question. He continued to make the point more explicit until he ultimately stated that abortion at any point was murder and that the legislature should have final say over whether preventing abortion was worth risking a living woman’s life.

White again pointed out the hypocrisy, noting that Florida already had a law that prevented abortions after a fetus could survive outside the womb, generally around 24 weeks, only to find the chief justice echoing Whitaker’s argument on fetal personhood. The exchange that followed was riveting, as White stayed composed while tearing down everything that Muñiz had just said.

On the merits, White did more than enough to prove that there is no compelling reason for the court to overturn decades-long precedent and it is in fact more imperative than ever that abortion remains legal in Florida. Regrettably, Federalist Society judges rarely decide cases on the merits, especially ones as central to their mission as abortion rights.

Regardless of the outcome, work is underway make it moot. In a bit of ironic timing, organizers with Floridans Protecting Freedom submitted nearly 300,000 petition signatures in support of a state constitutional amendment to guarantee abortion rights. The language of the amendment will now be reviewed by none other than the Florida Supreme Court, who will be under intense pressure to honor the democratic process if nothing else.

Now let’s run through some headlines that didn’t get nearly enough play this week.

Health Care

Mississippi: I’ll believe it when I see it, but it’s at least encouraging to hear the presumptive new Mississippi House Speaker say that the legislature would give serious consideration to Medicaid expansion in the next session.

“I think we as Republicans have probably earned a little bit of the bad rap we get on health care in Mississippi. Part of that is that we haven’t had a full-blown airing or discussion of Medicaid expansion. We’ve just said, ‘No.’

“Now, I’m not out here on the curb pushing Medicaid expansion, but we are going to have full discussions on that and on all facets of health care in Mississippi… Right or wrong, we have been wearing the yoke of, ‘Y’all haven’t even considered this or dug down into the numbers.’ And that’s true.”

It’s a rather blunt answer from the likely speaker, Rep. Jason White, given that the outgoing speaker has been so steadfastly against the expansion that he has refused to even hold a hearing on it. An estimated 300,000 Mississippians would gain health insurance if the program were to be expanded, and the federal government would pick up 90% of the tab.

Residents in the state are very vehemently in favor of the expansion, as are business groups and hospitals. There was an effort underway to put it up for a vote via ballot initiative in the 2022 election, but it was halted when the state Supreme Court threw out the entire initiative system.

Kentucky: Speaking of conservative states expanding Medicaid, lawmakers in Kentucky plan to finalize the regulations that will finally, permanently allow the low-income health plan to cover dental, vision, and hearing.

It’s a relieving conclusion to a rocky saga that pit Democratic Gov. Andy Beshear, who initially expanded the benefits, against the Republican supermajority in the legislature, who accused him of seizing their power and put a pause on the new services.

Housing

Arizona: With the paper-thin Republican majority in the state legislature unwilling to take action on the scourge of short-term rentals in the extremely housing-starved state, cities and towns across Arizona are teaming up to force a vote on ending the state’s pre-emption law tin a creative and potentially contentious way.

The proposal would give local officials the power to limit how many rentals can operate within their borders.. By casting a "yes" vote, all of those local governments agreed to pitch in on lobbying state lawmakers to enact the new regulations during the next legislative session, which begins in January.

Specifically, the proposal includes rules that would allow local officials to:

Put a cap on how much of their local housing market can be occupied by short-term rentals.

Limit the density of short-term rentals by neighborhood.

Require short-term rentals to be spaced out.

New York City just cracked down on Airbnb and Vrbo, leading to the near-instant disappearance of more than 15,000 rentals from those websites. These are all choices and lawmakers that have surrendered to the inevitability of tech platforms and rigged markets deserve to be relentlessly lobbied by members of the League of Arizona Cities and Towns for the rest of their days.

Supreme Court

It was a banner week for Senate Judiciary Committee chair Dick Durbin, who managed to exhibit his both his impotence and obsoletion in the span of just a few humiliating days.

On Wednesday, Durbin reconvened the committee for hearings on the nominations of two circuit court judge nominees, one from Kansas and the other from Indiana. Each nominee was permitted to go forward because Republican senators returned the “blue slips” that allow home state senators to effectively veto the president’s choices for the bench.

Republicans got rid of the system while in the majority to ease the path for Donald Trump to stock the judiciary with hundreds of Leonard Leo’s holy warriors, only for Durbin to bring it back when Democrats took over the Senate. Republicans, of course, have taken full advantage and halted many of Biden’s judicial nominees.

Durbin has steadfastly refused to end the archaic system, and praised the Republicans for their cooperation, holding it up as proof that it fosters tradition fosters bipartisan comity. Durbin was forced to eat his words just minutes later when the questioning began.

Republicans battered the nominees with a viciousness that offered little evidence of the bipartisan spirit, with Louisiana Sen. John Kennedy goading the nominees with explicitly racist questions. Even Durbin grew angry with Kennedy, so much so that he was audible even without a microphone.

It only got worse from there for Durbin, who days later received a letter from an indignant and impudent Samuel Alito. Last month, Durbin and the rest of the Democrats on the Judiciary Committee wrote a sad letter to Chief Justice John Roberts, asking that Alito recuse himself from an upcoming tax case being argued by a conservative attorney who interviewed Alito for several slobbering puff pieces in the Wall Street Journal this summer.

As you might expect from a guy who accepted a favor from an attorney who will be arguing a case before the Supreme Court this fall, Alito told Durbin to shove it. And then Durbin, still unwilling to show any sort of backbone, whined in a public statement about his concern over the court’s reputation (corruption was never mentioned).

The Court is in a crisis of its own making, and Justice Alito and the rest of the Court should be doing everything in their power to regain public trust, not the opposite.

Justice Alito, of the originalist school of thinking that empty seats on an airplane don’t count as gifts, surprises no one by sitting on a case involving a lawyer who honored him with a puff piece in the Wall Street Journal. Why do these Justices continue to take a wrecking ball to the reputation of the highest court in the land?

Durbin’s question answers itself: the conservatives Justices continue to take a wrecking ball to the Supreme Court’s reputation — not to mention the rule of law and what remains of secular democracy — because Dick Durbin continues to allow them to do so.

The longer he refuses to take action and use subpoenas to investigate these deeply corrupt conservatives, the more he’s going to see the institution he loves so much be used to dismantle American society.

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