SCOTUS Is Making New Law in the Shadows

April 15th, New York Times “Friday night’s injunction was at the 20th time since the court’s term began last October the justices have issued a shadow docket ruling altering the status quo.

Which brings to question, the more substantive the work the justices carry out through such unusual, unsigned, and unexplained orders; the more a “shadow docket” raises concerns about the court’s decision making transparency.

It leaves to questioning the underlying legitimacy of the high court decisions.

Recent years have seen a significant uptick in the volume of “shadow docket” rulings that are resolving matters beyond a singular issue and the issuing of orders changing the effect of lower-court rulings while they are appealed.

The most recent the Robert’s Court has taken up is California’s Covid-based restrictions on in-home gatherings to members of no more than three different households. The plaintiffs, who regularly hold Bible studies and prayer meetings in their homes, challenged the restrictions on the ground that they interfered with their right to the free exercise of religion as guaranteed by the First Amendment.

The Robert’s Court in what one scholar called the SCOTUS “most important free exercise decision since 1990,” the justices used the shadow docket to expand religious liberty.

The Trump administration sought emergency relief pending appeal 41 times in four years. Contrast this to the Bush and Obama administrations seeking such relief eight times in 16 years. The justices largely acquiesced to the Trump applications, granting 28 in full or in part.

African Americans, the Poor in Court and Sentencing Reform

The interviewee says that blacks are disproportionately imprisoned in the United States; notes that though blacks only make up 13% of the general population, they make up 40% of the prison population. While it is quite likely that blacks are disproportionately imprisoned, it is what the interviewee didn’t say that begs asking. Why is it that blacks are being disproportionately imprisoned? For the answer to that, first, let’s take a look at some U.S. Department of Justice data on arrests:

Selected from the above linked table: Estimated number of arrests by offense and race, 2019, All ages:

All offenses blacks more than 25% of total

Murder and nonnegligent manslaughter blacks more than 50% of totalotal….

Robbery blacks more than 50% of total

….

Aggravated assault blacks more than 33% of total

….

These Justice Department figures tell us that blacks are in fact committing a disproportionate percentage of all crimes being committed. What else do we know in our search for the why?

It is known, or at least believed to be known: That, by far, most black citizens are law abiding. That upper and middle income blacks are exceptionally law abiding. That in modern day populations, males are far more likely to commit crimes than females. That almost all crimes by black Americans are committed by young black males. That nearly half of black Americans live in areas of concentrated poverty. That almost all of the crime committed by black Americans is committed by young black males between the ages of 12 and 34 years of age who live in areas of concentrated poverty (most of their victims live in these same areas).

It would help to know: What percentage of those black Americans who live in areas of concentrated poverty are males between the ages of 12 and 34. What percentage of this group commit criminal acts.

If we estimate 12 to 34 year old black males constitute 12% of the black population in areas of concentrated poverty, and that one-half of them are committing criminal acts; we aren’t looking at 13% of the population committing a disproportionate of all crimes committed. We are looking at (0.5 x 0.12 x 0.13 x 100 ~ 0.9%) less than 1%, of the overall population committing an extremely disproportionate per cent of all crimes committed. More specifically, we are talking about young black males in poor urban black communities committing an extremely disproportionate per cent of all crimes.

Why is it that 12 to 34 year old black males who live in urban areas of concentrated poverty are committing crimes at such a disproportionately high rate? Why is the cause we seek. Living in poor urban areas of concentrated poverty is the where. Why do young black males living in poor urban areas of concentrated poverty more like to commit criminal acts? It is known, or thought to be known, that young males are more likely to commit crimes. There appears to be little, if any evidence, that race alone is a factor. Leaving us with young males living in poor urban areas of concentrated poverty; with good reason to suppose that the lack of adequate housing, food, healthcare, education, hope, … of everything they need, and want, might be the most significant factor, the greater cause. These causes/things: inadequate housing, inadequate food, inadequate healthcare, inadequate education, little reason for hope, …, are things we as a society can do something about. Our doing so would be far better than going forward with the long failed more and more incarceration, imprisonment.

—

It appears that the most proximate cause of the most disproportionate percentage of young black males being incarcerated was their socioeconomic environs. Suppose that the reason for one group of citizens having a disproportionately high arrest rate was found to be because of their ‘culture’, their biology, their genetics, their upbringing, their psychology, …? Or, some combination of these things? What would an ‘Estimated number of arrests by offense and socioeconomic status’ look like? What would an ‘Estimated number of arrests by offense and culture’ look like? We have learned that there is a strong correlation between whether the child was wanted. What would an ‘Estimated number of arrests by offense and parenting’ look like? What other things do we not know? Asking the right questions and getting the correct answers is all important; is our best hope for finding solutions.

Raffi Khatchadourian’s Ghost Walls {Surviving the Crackdown in Xinjiang ( As mass detentions and surveillance dominate the lives of China’s Uyghurs and Kazakhs, a woman struggles to free herself.)} is beyond Margaret Atwood dystopian. Ghost Walls gives a victim’s accounting of her own experiencing of China’s reaction to the cultural differences between the Uyghurs, Kazakhs, and other indigenous Turkic peoples, and China’s Han Chinese majority. A reaction that seems to be a crazy of mixture of the 13^th and 21^st Centuries with a f—ed up, post Mao, culture thrown in. For the world, the worst thing that could possibly happen is for this manic genocidal crackdown to succeed. When in doubt, when in China, double down. Can anybody make anyone do anything?

—

The idea of imposing one group’s set of values on another hasn’t worked very well so far. Seems it is rather a recipe for conflict and strife Looking ahead, this problem of living in multiracial, multicultural societies is an old one that is suddenly getting worse. One we really need to figure out.

It is said that Africa is home to more genotypes than the rest of the world combined. Our neighbor to the south is not a land of one people but is rather home to a thousand peoples. All around the world: Hong Kong, Tibet, Mongolia, and Xinjiang in China; the Kurds in Syria, Iraq, Turkey and Iran; the Palestinians in Israel (or vice versa); the Rohingya in Myanmar; all across Africa; …, the world is trying to come to grips with differences. Too often, we see one group trying to make another second group behave as they, the first group, think they should.

Naked Capitalism had this commentary up on its site as introduced by Yves Smith. I made some small editorial changes to further emphasize the two points Yves makes in the beginning and also some of the commentary in the article. Both parts are good reads.

To wit; If you are handcuffed and on the ground, you are killed. If you drive away, you are killed. If you run, then stop, and turn around with your hands up; you are killed. The common thread here is the victims are all Black Americans.

Daunte Wright’s Killing Makes the Case for Shrinking Police Budgets, Naked Capitalism, Yves Smith

Yves here. I don’t pretend to have any good answers for what to do about police brutality, particularly towards people of color. During the Presidential campaign, Biden backed even more police spending, no doubt to clam the nerves of the Dem’s professional-managerial class base. More unequal societies are lower trust societies, so the K-shaped recovery is only going to increase the perception of risk among the well off.

Two things to keep in mind:

First, is that the most troubling form of police militarization is their hiring of former soldiers. Any who have seen combat have been deeply acculturated to shoot at any threat. I don’t see how to undo that.

Second, is that some data suggests that abusive policing is concentrated among a relatively small proportion of the total staff. Malcolm Gladwell looked at the Los Angeles Police Department’s efforts to improve its long-established bad relationship with community due to over-use of force. They invested a lot of effort in training, only to find it had very little effect.

Further study showed why. The average cop was not behaving badly. A small number had many warning and citations. Gladwell argued that the remedy was to get these hotheads off the street as soon as their abusive tendencies surfaced.

But the culture of police forces as currently constituted all works against that. Cops are indoctrinated to stick together. Being a do-gooder is being a rat, and being a rat is a fast path to having no backup show up when you are in a tough spot (or having drugs or other incriminating evidence planted). So cops can’t call out the abusers in their ranks for fear of repercussions. And police unions mount vigorous defense of cops facing sanctions.

Washington Equitable: Tax evasion at the top of the U.S. income distribution and How To Fight it.

There is another version of the issue starting off with Senior fellow (Urban-Brookings Tax Policy Center of the Urban Institute), Steven M. Rosenthal taking on the issue;

“If Congress Wants the IRS To Collect More Tax from The Rich, It Needs to Pass Better Laws.”

Or you can go to NBER version of the Washington Equitible Working Paper; Tax Evasion at the Top of the Income Distribution: Theory and Evidence, March 2021.

Your Choice.

The question?

“How much tax do high-income Americans evade? And what kinds of evasion tactics do they use?”

Random audits miss two of the more common methods used to minimize taxes. The audits underestimate tax evasion capturing little of the investor tax evasion by those using offshore accounts and pass-through businesses. Both methods present opportunities unlikely to be captured by the audits of income taxes and are significant to the top income brackets or the 1% of household taxpayers making greater that $500,000 annually (TPC).

In a July 2009 NYT article, it was determined Swiss bank UBS helped US citizens hide $20 billion. This is an old article and certainly later administrations did little to stifle tax avoidance.

Every citizen of the United States has the right to be represented in both their state and federal governments by a representative chosen in a free and fair election. In a free and fair and election, each and every vote is equal. By definition a gerrymandered election is unfair because it favors one group of citizens over another. In a gerrymandered district, one’s vote may count for nothing, one party’s vote may count for nothing. In a gerrymandered state, the majority of residents’ votes may count for nothing. In gerrymandered states, many of the state’s residents are being deprived of their right to representation at both the state and federal level.

In states with gerrymandered districts, the members of the state’s legislature are not representative of the majority of the residents of that state. In states with gerrymandered districts, the state’s delegation of representatives to the US House of Representatives is almost certainly not representative of the majority of the residents of that state. In gerrymandered states, only the residents’ votes for US Senators and US Presidents are immune the distortion in representation caused by the gerrymandering.

State Legislatures write and pass laws that apply to any and every one in the state. If the state is gerrymandered, these laws are being imposed on those denied representation by this gerrymandering; are likely being written by representatives elected by a minority of the voters in the state. The US House of Representatives writes and passes laws that apply to any and all persons in the US. These federal laws, too, are being imposed on those denied representation by gerrymandering.

State and federal legislatures allocate government funds to state and federal districts within a state. This allows state and federal representatives to ‘bring home the bacon’. In gerrymandered states, the bacon is more likely to go to the district(s) that voted for the elected representative than those that didn’t. The spoils of gerrymandering go to those who did the gerrymandering.

In state after state, we see gerrymandered state legislatures override voter approved initiatives and referendums; deny the will of the people. At the Federal level, we see popular legislation voted down because of gerrymandering at the state level; the will of the majority of the people being denied.

For all intents and purposes, in gerrymandered districts, the minority’s votes don’t count; they are being denied their right to vote, their right to representation. Gerrymandering is voter suppression. Gerrymandering is most undemocratic. Gerrymandering is not playing fair.

No doubt, they saw these decisions as moments of greatness. Or, at least hoped that history would see it that way. One, an egotistical ass who used his intellect as a cudgel with which to intimidate, to bully others. The other, simply a small minded man selected for that very smallness of mind. The one, recently departed Supreme Court Justice Antonin Scalia. The other, now Supreme Court Chief Justice John Roberts.

Had Justice Scalia been even half as smart as he thought he was, he would have known that America is as great as we the people make it. That the right to vote, not the right to possess a gun, is our path to our destiny. That the constitution was given to us not as sword to fall upon, but rather as a rock upon which to build our democracy.

As a consequence of Justice Scalia’s Heller decision, and, make no mistake, it was a huge mistake and it was his; across the nation, we now have half-wits too dumb to understand democracy armed with assault weapons forming armed militia in order to ‘protect to democracy’. To these idiots; democracy means their right to bear arms; democracy comes from the barrel of a gun, not with the vote. Many of them couldn’t even be bothered to vote. After all, what does voting have to do with democracy? As a consequence of Heller, America has more guns per capita than any other country; more gun deaths per capita than any other country.

Chief Justice Roberts no doubt hopes to be remembered well; perhaps, even as being a great man. Don’t we all? Too bad, Justice Roberts. History will see you for the small minded man you were: The Chief Justice who unleashed the forces of wealth against our democracy in Citizens v. FEC, the Chief Justice of Shelby v. Holder, the Chief Justice of Rucho v. Common Cause; as the Chief Justice Taney of the 21^st century. Let us pray that Citizens, Shelby, Rucho, …, don’t take so long to be overturned; that another Chief Justice comes along soon who sees the wrong in these decisions; that they must be overturned. A Chief Justice that can again set us on a path forward.

Did Justice Scalia even believe in democracy? Let us look to his votes. He voted with the majority in Citizens, Shelby, and Bush v. Gore. So, let us say that he didn’t. What of those members of well armed militias enabled by his Heller decision who assaulted the Capitol on January 6, 2021 in an attempted insurrection? Those who would use force to overturn that very cornerstone of democracy, a free and fair election? How was it that the ‘brilliant’ Justice Scalia was incapable of foreseeing the consequences of Heller?

Chief Justice Roberts, does he believe in democracy? Again, there is no evidence that he does, a lot that he does not. It seems that John Roberts does believe in serving the Republican party (he ran to George W. Bush’s aid in Florida in 2000), in the Federalist Society, and in something he calls ‘Originalism’. What of the consequences of his Citizens decision? Tens of $Billions of dark money being spent on political campaigns, on appointing Federalist Society adherents to the Federal Courts (including the last three appointments to the Supreme Court). What of the consequences of Shelby v. Holder? To date, republican legislatures in forty-three states have taken steps to suppress minority voting based on that decision. They could do this because they could because of the Shelby decision and of the gerrymandering permitted under the Rucho v. Common Cause decision. Supreme Court Chief Justice John Roberts is no friend of democracy.

Judges, Ideologues, Dogmatics, and bad

decisions

It is undecided yet, as to whether a newly assembled Board of Governors would jointly act under the leadership of Ron Bloom, a Democrat and former Obama administration appointee, to dismiss PMG Louis DeJoy. President Biden has appointed three additional members to the Board including;

– Ron Stroman, formerly the deputy postmaster general (resigned);

– Amber McReynolds, a voting rights activist; and

– Anton Hajjar, a former American Postal Workers Union official,

to fill the three vacancies currently open. The Senate still has to approve their appointments.

If confirmed, the board of governors would have all nine seats occupied for the first time in more than a decade. It would consist of a balanced makeup of four Republicans, four Democrats, and one independent. 

It was thought that the Board would fire PMG Louis DeJoy. The Board is the only ones who can do such regardless of whether Congress stamps calls for such to happen. It also appears, the existing members appointed by former President Trump show little interest in firing DeJoy.

Democrat, Obama appointee, and Chair of the Board Ron Bloom has shown little interest in taking such action. Indeed, he reiterated recently he had worked with DeJoy on the 10-year business plan and he would support it. Previously. Ron Bloom helped write a helped write a National Association of Letters Carriers report castigating postal management for proposing to slash services and standards.

Chairman Bloom is serving in a holdover year which will expire in December. He approved of DeJoy’s appointment last year (2020).  Campaign- minded Biden, vowed to fill the board vacancies, put the Postal Service on firmer financial footing, help postal employees join unions, and defend the agency’s obligation to deliver to every address in the country. 

The postal board can only have five presidential-appointed members from the same party by law. Four board slots will expire in the next two years. Biden has an opportunity to take USPS leadership in a different direction in his first term if needed.

Perhaps I am wrong; but, I believe Biden will sit this one out for a bit while he handles other pressing issues with the pandemic, McConnell, the economy, and getting as much done before the next election in 2022. 

Biden’s Postal Board Nominees Unlikely to Spell Quick End to Postmaster General’s Tenure – Government Executive (govexec.com)

Dozens of Lawmakers Call on Biden to Replace Entire USPS Board – Government Executive (govexec.com)

Ken Melvin has an excellent post, Duplicitous Bastards. In it, Ken touches upon the right to bear arms as opposed to the right to vote and how the former who advocate the bearing of arms who advocate such are more than likely inclined to make it difficult for the latter who wish to practice their right to vote.

Forty three states are attempting to pass 253 laws restricting the right to vote and the state governments show no fear of those voters as opposed to the fear of those who support the right to bear any type of bullet-spewing-weapon.

Today, Professor of History Heather Cox – Richardson touches upon the supposed – absolute right to bear arms declared by those demanding such exists without any legal impediments necessary for safety, acquisition, etc.

Professor Cox – Richardson offers up a history of the NRA and how we got to where we are today. It is a good read, offering facts I was not aware of in the past.

Letters From an American, Heather Cox – Richardson

A history professor interested the contrast between image and reality in American politics. I believe in American democracy, despite its frequent failures.

Ten more people in Boulder, Colorado, died yesterday, shot by a man with a gun, just days after we lost 8 others in Atlanta, Georgia, shot by a man with a gun.

In 2017, after the murder of 58 people in Las Vegas, political personality Bill O’Reilly said that such mass casualties were “the price of freedom.”

But his is a very recent interpretation of guns and their meaning in America.

The Second Amendment to the Constitution is one simple sentence:

“A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

There’s not a lot to go on about what the Framers meant, although in their day, to “bear arms” meant to be part of an organized militia.

As the Tennessee Supreme Court wrote in 1840,

“A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”

In the practice of Law, there is terminology used to establish whether a person or Company (also a person) is following a pattern or practice of doing something. Typically, the terminology is used in discrimination suits to determine or describe whether a defendant has a policy of doing so, even if the policy of doing so is not always followed. 

Nancy LeTourneau at Horizons Blog looks at such a pattern or practice with regard to migration issues on the southern US border using the detail provided by the Washington Post’s Monkey Cage blog

Lets get to my favorite, “the numbers.”

We have some charts today as provided by U.S. Customs and Border Protection (CBP) and the Washington Post’s  Monkey Cage blog. They too have looked at the numbers and come to the same conclusion which Nancy LeTourneau reaches.

Lets establish a yes or no question and see if we can prove or disprove whether Republicans are correct in stating the recent surge is unique to Biden’s term as President.

Is the Southern border migration surge a practice or a pattern, the United States can expect over certain time (annual?) periods? Or is this occurrence during Biden’s tenure a one time occurrence which may be caused by his taking office and failing to act?

Using a graph supplied by Reuters and reviewing the numbers of people apprehended on a yearly basis, we can see the spikes occurring annually. The intensity of the spikes varies according to what each administration did or did not do. From 2000 till 2010, the numbers and peaks decreased and did not noticeably increase again till 2019.