Author: Henry Wray

The Supreme Court has come under withering attack from the left as it produces decisions not to their liking. Rather than just critiquing these decisions on the merits, many of the Court’s detractors insist that the Court itself is somehow “illegitimate.” One common line of attack is that the Court is a radical, even imperial body that has gone rogue and is wholly disconnected from the American people. In this telling, the Court has lost public confidence because its decisions are fundamentally at odds with  public sentiment.

Like other assaults on the Court’s legitimacy,^[1]See, e.g., here, here, here, and here. this is a false narrative. In recent years, researchers compared public opinion on issues presented in selected high-profile cases before the Court with how the Court ultimately decided those issues. The results are telling. Unsurprisingly, there are some cases in which the Court’s decisions do run counter to majority public opinion. Also unsurprisingly, there is a major disconnect between many of the Court’s decisions and the views of leftist politicians and media. For the most part, however, the Court’s decisions are well within the mainstream of American public opinion. In fact, the Court is more in tune with the public than are its critics.

This year, the researchers surveyed public opinion on 13 prominent cases before the Court. The issues included race preferences in college admissions, environmental regulation, freedom of speech and religion, student loan forgiveness, and voting. As in past years, survey respondents were categorized as Democrats, Republicans, and Independents. Polling on each issue was compiled for overall majority opinion and for each of the respondent subgroups. The Court’s disposition of two cases did not match the survey questions, thereby leaving 11 cases for comparison.^[2]The Court did not reach the merits in one of these cases; in the other, the Court focused on an issue different from the one that was polled.

The results:

• • The Court’s decisions aligned with majority public opinion in 8 of 10 cases; public opinion was evenly split in the other case.
  • The Court’s decision in one of the two cases that ran counter to public opinion was unanimous. This suggests that the law was fairly clear and simply incompatible with the public’s preference.^[3]The Court held in this case that internet platforms could not be sued for failing to remove content supporting the Islamic State.
  • The only other decision that went against majority opinion dealt with EPA’s regulatory jurisdiction over wetlands.
  • Regarding the polling subgroups, the Court’s decisions aligned with a majority of Independent respondents in 9 of the 11 cases and with a majority of Republicans in 6 of 10 (with one even split). A majority of Democrats supported the Court’s decision in 6 of 11 cases.
  • The highest profile cases were the two dealing with race preferences in college admissions. The Court’s decision holding such preferences unconstitutional^[4]The two cases were combined into one decision. has been criticized bitterly by Democratic politicians and left-leaning media. In stark contrast, the decision was strongly supported by overall public opinion as well as all respondent subgroups–Republicans, Independents, and Democrats alike.

While the Supreme Court is not supposed to decide cases based on public opinion, a large and persistent gap between the Court’s decisions and American public sentiment would be cause for concern. However, the survey results demonstrate that no such gap exists. The same holds true for the survey results in previous years.^[5]See here for prior year survey results. Last year’s survey results were more mixed and the highest profile decision, Dobbs, was quite unpopular. Nevertheless, the Court’s decisions still aligned with majority public opinion more often than not.^[6]See here for more on last year’s survey.

The voting patterns of the justices in the surveyed cases also contradict the critics’ narrative of a six-justice conservative monolith. Ten of the 13 cases were split decisions, but only four of them featured all the conservative/Republican appointee justices on one side and the three liberal/Democratic appointees on the other.^[7]Indeed, only five out of all the cases decided by the Court this term involved a 6-3 split along ideological lines. See here for this and other statistics. The six conservatives voted as a bloc only in those four cases. Notably, the three liberals voted in lockstep twice as often as the conservatives–in eight of the ten cases. Neither case in which they diverged was particularly ideologically charged.

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As the survey data show, accusations that the Court is fundamentally out of step with the American public and has lost their confidence are wrong. These accusations are also ironic given the low public standing of the accusers. Alarmingly, public trust in most American institutions is on the decline; the Supreme Court is no exception. However, the Court still ranks higher in public confidence than the President, and far above Congress and the media.^[8]See here for the latest results from Gallup.

Donald Trump has now been criminally indicted for the second time this year, with perhaps more to come.^[1]The same prosecutor who brought these charges is also investigating Trump’s actions relating to the January 6 attack on the Capitol, and authorities in Georgia are investigating him for possible … Continue reading  The second indictment, brought by federal Department of Justice Special Counsel Jack Smith, involves Trump’s alleged improper possession and handling of classified documents and obstruction of efforts by federal officials to recover them.

This indictment elicited the usual response from Trump.  He claimed to be totally innocent, once again the victim of a “witch hunt” conducted by a corrupt, even deranged, prosecutor. The reaction of many other prominent Republicans and their media allies was more disturbing, although just as  predictable. They joined Trump in condemning the Justice Department, echoing his claims that the indictment was politically motivated and a case of selective prosecution.

It’s true that Trump has been subjected to arguably partisan and unfounded legal attacks. The Russian collusion accusations that consumed much of his presidency have been thoroughly debunked. And Trump’s first indictment in New York relating to Stormy Daniels hush money payments was greeted by widespread skepticism as legally dubious and politically motivated. However, this second indictment is much harder to downplay.

It’s also true that many prominent officials—including President Biden, Hillary Clinton, and Mike Pence–have been lax (to say the least) in their treatment of classified documents. Moreover, leaking classified information is standard practice in Washington. The key difference here is that, according to the indictment, Trump engaged in obstruction and deceit in rebuffing federal officials seeking the return of classified documents. Paragraph 7 of the indictment alleges that Trump–

• • • suggested that his attorneys falsely claim to the FBI and grand jury that he did not have subpoenaed documents;
    • directed a staffer to conceal the documents;
    • suggested that his attorney hide or destroy the documents; and
    • caused a certification to be submitted to the FBI and grand jury falsely claiming that all subpoenaed documents had been produced while knowing that this was not true.

Even many legal experts on the right recognize that the charges here are fundamentally different and far more serious than previous accusations. (See, e.g., here, here, here, and here.) Bill Barr, Trump’s former attorney general, pulled no punches in a TV interview, observing that if even half the indictment can be proved, Trump is “toast.” He added:

“It’s a very detailed indictment and it’s very, very damning. This idea of presenting Trump as a victim here, a victim of a witch hunt, is ridiculous. Yes, he’s been a victim in the past. Yes, his adversaries have obsessively pursued him with phony claims. And I’ve been at his side, defending against them when he is a victim. But this is much different. He’s not a victim here.”^[2]More recently, Barr authored a comprehensive analysis of the indictment, including a point-by-point rebuttal of arguments seeking to minimize it.

Like anyone else, Trump is entitled to a presumption of innocence. However, Republicans, including several of his competitors for the GOP presidential nomination, were not content simply to make that point. Instead, they chose to join Trump in questioning the legitimacy of the charges. Trump’s supporters generally avoided addressing the facts laid out in the indictment. Rather, they focused on the Justice Department’s failure to pursue prominent Democrats who mishandled classified information.

As noted above, however, the others did not engage in the type of obstruction and lies that Trump is accused of here. Indeed, his alleged behavior in this case is all too typical of and unique to Trump. His long history of serial deception, flouting governmental norms, and showing contempt for the rule of law has already demonstrated his unfitness for public office. Yet most Republican voters as well as many of their elected officials and media boosters still accept Trump as their champion.

Sadly, much of the Republican Party has lost its moral compass and its common sense. While Trump’s latest indictment still may not be enough to dissuade his core supporters, it probably will further alienate the larger public and jeopardize his election prospects even more. Republicans can look forward to another round of election losses in 2024 unless they somehow come to see and acknowledge Trump for what he is and part ways with him.

Donald Trump will almost surely play a pivotal role in the election as the Republican nominee or as a spoiler. Either way, he is likely to cement a win for the Democratic ticket.

While Trump retains a substantial base in the Republican party and is the odds-on favorite to win the GOP nomination, he will face a huge challenge in the general election. His negatives consistently exceed his positives by a wide margin. In every election since his surprise win in 2016 he lost or was a major contributor to Republican losses.

Current polling shows Trump as competitive with or even leading President Biden in a rematch that most Americans dread. However, it’s unwise to put much stock in polls at this early stage. Trump is likely to fade as time goes by and “Trump fatigue” intensifies. His conduct in the wake of his 2020 defeat highlights his liabilities. His obsessive claims of a stolen election are patently and almost surely knowingly false. His actions relating to the election and the January 6 attack on the Capitol were clearly impeachable if not criminal. Trump’s legal problems could mount. His dubious indictment in New York probably gave him a boost, firing up his base and putting his GOP opponents in an awkward position. However, more serious criminal charges would be difficult to blow off.

Trump’s CNN “town hall” fiasco and other recent appearances reaffirm (if there was any lingering doubt) that he has not changed. He will once again campaign as a combative, divisive, thoroughly dishonest con artist and will make little effort to reach beyond his base. By contrast, although his administration has pursued a progressive agenda on many fronts, Biden will probably campaign as a moderate with much wider appeal to the electorate. Finally, while both are weak and highly unpopular candidates, Trump stands out as downright dangerous. He has repeatedly shown  disdain for basic democratic norms and the rule of law.

In short, Trump is very unlikely to win back the presidency if he becomes the Republican nominee. But even if he loses the nomination, he will probably remain a major drag on the Republican ticket. Trump being Trump, it’s nearly impossible to picture him in this scenario graciously conceding and endorsing the winning GOP nominee. Far more likely, he would refuse to accept the primary results, perhaps stay in the race as an independent, or at a minimum discourage his voters from backing the nominee. In what figures to be a close general election, another Republican nominee would struggle mightily without the support of Trump and his base voters, or worse, in the face of their active opposition.

A Republican loss in the presidential election with Trump as nominee or spoiler would likely cost Republicans their slim House majority as well. And while the Senate math for 2024 favors a Republican takeover, the Trump effect could also jeopardize that result.

Can Republicans escape the curse of Trump in 2024?  That’s a tall order. They would need to coalesce behind a non-Trump candidate who could somehow surmount the Trump base and win the nomination. Then, the nominee would need enough appeal to general election voters to offset the negative impact of a disgruntled Trump and his loyalists.

No such a candidate has emerged yet. Ron DeSantis, currently Trump’s main competitor, seems ill suited to the role. Instead of concentrating on his substantive accomplishments as Governor of Florida, DeSantis veered off into portraying himself as a combative and divisive mini-Trump “without the baggage.”  This strategy isn’t working either with the Trump base or the broader public. Trump cultists remain loyal to him despite or even because of his “baggage.” They embrace Trump viscerally as a giant middle finger to the elites of both parties and a major irritant to liberals. Why should they settle for an imitation Trump like DeSantis when they can have the real thing? At the same time, DeSantis’s  stunts pandering to the Trump base threaten to alienate non-Trump acolytes who make up most of the electorate.

It’s possible that DeSantis will adopt a new strategy or that another challenger will gain ground. At the very least, however, a successful challenger would need to set themselves apart from Trump by forthrightly rejecting his stolen election lies and condemning his post-election conduct. The challenger would also need to build a positive and forward-looking campaign agenda, rather than one based on grievance and vengeance. All of this may be too much for the current crop of challengers who mainly walk on eggshells when it comes to Trump. More likely, it will take another round of election defeats before Republicans shake Trump’s Faustian grip and set out to rebuild their party.

 

It’s tiresome to blog so much about the Thomases. However, the media war against them is relentless and the hyperbolic attacks keep coming, as they have since the battle over Justice Thomas’s confirmation decades ago.

The latest consists of two “bombshell” reports by ProPublica and the ensuing media and political frenzy over them. One report details lodging, transportation, and other gifts provided to Justice Thomas and his wife, Ginni, over the years by their longtime friend Harlan Crow, a wealthy real estate developer and conservative political activist. The other describes Crow’s 2014 purchase of the home of Justice Thomas’s mother, in which the Justice had a one-third ownership interest. The reports note that Justice Thomas did not list these gifts or the house sale on his financial disclosure forms. According to ProPublica, all of this violated the Ethics In Government Act.

The ProPublica reports received extensive coverage. They generated the usual cries of outrage from left-leaning pundits and Democratic politicians, including calls for Justice Thomas to resign or be impeached. Many on the left also cited the reports as further undermining the “legitimacy” of the Supreme Court.

Like other alleged “scandals” involving the Thomases, this one is greatly exaggerated.

ProPublica casts its reports in the worst possible light, frequently embellishing the facts. ^[1]For example, the report values the Indonesian cruise on Crow’s “superyacht” and transportation to and from it on Crow’s plane as a gift worth over $500,000–the total cost the Thomases … Continue reading However, there’s nothing illegal or nefarious about the interactions between Crow and the Thomases. To state the obvious, Supreme Court Justices, like everyone else, have the right to form friendships with whomever they please, including rich and politically active individuals. They are also free to accept generosity from their friends so long as they do not violate conflict of interest prohibitions. There is no indication of such violations here. Crow stated that he had no business before the Supreme Court, that the Thomases never requested any of his hospitality, that he never discussed court cases with Justice Thomas, and that neither he nor, to the best of his knowledge, anyone else present sought to influence the Justice on any legal or political issue. Nothing in the ProPublica reports contradicts these assertions.

The only legal issue raised by the reports is compliance with financial disclosure requirements. As it turns out, just a single item described in the reports clearly required disclosure by Justice Thomas. That was the 2014 sale of his mother’s house to Crow. Reportedly, Justice Thomas will amend his filing to add this transaction.

Most if not all of the largesse Crow provided the Thomases, including visits to his properties and the much-ballyhooed Indonesian cruise on his yacht, were exempt from disclosure under the applicable reporting rules. Those rules contained an exception to disclosure for “food, lodging, or entertainment received as ‘personal hospitality of any individual.’” The one grey area is whether the exception covered transportation in Crow’s private plane. Ethics experts differ on this. The experts sought out by ProPublica said unequivocally no. Others regard the rules then in effect as too vague to permit a definitive conclusion. The rules were subsequently amended (before the ProPublica reports came out) to specifically exclude from the “personal hospitality” exception “transportation that substitutes for commercial transportation.”

In sum, ProPublica’s extensive investigation uncovered only one definitive financial disclosure error by Justice Thomas. He has made other mistakes in his financial disclosure filings, as have other justices, but none evidences an intent to conceal. One is a minuscule oversight that hardly bears mention. More significantly, he neglected to report Ginni’s employment income for some years. However, her jobs and activities were well known, having been subject to vigorous media coverage over the years. Nor is there anything secretive about the Thomases’s  relationship with Crow. They have been quite open about the hospitality they received from Crow, and it has also been subject to media coverage going back at least to 2011. At the same time, it’s fair to say that Justice Thomas should be more diligent in his financial disclosure filings. Indeed, he would be well advised to be extra scrupulous since he will surely continue to wear a huge target on his back for the remainder of his service on the Court.

Moving beyond the legalities, is there anything inappropriate or untoward in Justice Thomas’s interactions with Crow? For most people, the answer likely depends on their overall view of him. Justice Thomas is a polarizing figure to such an extent that impressions of him have become largely intractable. In this regard, the ProPublica reports are somewhat like a Rorschach test. His detractors will view them as further confirmation that he is a corrupt tool of white, reactionary plutocrats—and, according to many on the identity-obsessed left, a traitor to his race. His admirers will view them as more spurious attacks on an outstanding jurist who has demonstrated independence and intellectual consistency since his appointment to the Court. To the latter, the notion that Justice Thomas’s relationship with Crow could affect his rulings is laughable.

Two additional points should be noted. First, Justice Thomas is by no means unique among Supreme Court Justices in accepting largesse from wealthy benefactors. A recent New York Times editorial observed that virtually all members of the Court for decades, both Republican and Democratic appointees, have accepted gifts and travel, both costly and modest, from outside individuals and groups. The editorial offers examples, some listed on financial disclosure forms and some not.

The Times editorial asserts that Justice Thomas is the most “egregious” (whatever that means), but there is no comprehensive basis for comparison. No justice past or present has been subjected to the intense scrutiny the media reserves for him. Furthermore, a few examples not mentioned in the editorial cast doubt on its assertion. Both former Justices William Brennan and William O. Douglas received financial benefits far exceeding $100,000 in today’s dollars. It’s certainly fair to consider whether existing Supreme Court ethics rules should be tightened, as many urge. But there is no valid reason to single out Justice Thomas for special condemnation.

Second, some pundits argue that Justice Thomas’s behavior is equivalent to or worse than former Justice Abe Fortas’s, and that he should follow Fortas’s example and resign. (See, e.g., here and here.) This is absurd. Justice Fortas received cash payments from benefactors with potential business before the Court that reached well into six figures in today’s dollars. The gift that led to his resignation came from convicted securities fraudster Louis Wolfson. Allegedly, Wolfson sought Fortas’s help to obtain a presidential pardon. Fortas denied acting on behalf of Wolfson and returned the payment but admitted discussing Wolfson’s “problems” with him. On top of this, Fortas regularly attended White House staff meetings while serving on the Court and briefed President Lyndon Johnson on internal Court deliberations.^[2]See here, here, and here for background.

The payments to Fortas were far more dubious than any largess Justice Thomas received, and his continued engagement with the White House as a sitting Supreme Court Justice was breathtakingly inappropriate. His conduct was much more serious than anything Justice Thomas did in terms of raising questions of judicial independence and objectivity. This is not to suggest that Fortas was corrupt; to the contrary, he had a distinguished career before and after his service on the Court. The point is that the accusations against Justice Thomas, even if fully credited, do not remotely resemble Fortas’s issues.

 

 

 

Like virtually all the seemingly endless media attacks on the Thomases, recent reporting on Justice Thomas’s financial disclosure issues has produced more smoke than fire. This is true of the leading reports by ProPublica, which will be analyzed in a forthcoming post. It is even more so in the case of a downright frivolous Washington Post follow-up story. Indeed, the Post story illustrates how far the media will go to over-hype these issues.

The headline of the Post story, echoed by a number of other media outlets, reads: “Clarence Thomas has for years claimed income from a defunct real estate firm.” What? It turns out a family business tied to the Thomases apparently reorganized at one point and tweaked its name from “Ginger, Ltd., Partnership” to “Ginger Holdings, LLC.”  That’s it. The story does not suggest that Justice Thomas failed to report fully and accurately income received from this enterprise, which is by no means “defunct” but simply operating under a slightly different name. Justice Thomas’s only sin was failing to pick up the subtle name change.

A less provocative and more accurate headline for the story would be: “Clarence Thomas’s financial disclosure filings contain a slight discrepancy in the name of a real estate firm from which he claimed income.” But who would read an article with a nothing headline like that? A better question is would any media outlet publish a story with so little substance to it unless it involved Justice Thomas or his wife?

 

After Speaker McCarthy’s election fiasco, the conventional wisdom is that the House of Representatives faces two chaotic years of Republicans wreaking havoc and threatening dire consequences for the Nation. But is a more optimistic scenario possible?

It’s hard to argue with the widespread predictions of chaos and dysfunction for the 118^th Congress. Certainly, Kevin McCarthy undercut his power as speaker with the many concessions he made in his zeal to reach that office at any cost. Even apart from this year’s speaker election debacle, the recent history of fractious Republican control of the House does not bode well for effective governance. (Ask former Speakers Boehner and Ryan.)

The 20 House members who resisted McCarthy along with other Freedom Caucus types are presumed to be the beneficiaries of McCarthy’s concessions as well as the likely perpetrators of the mayhem to come. But could the concessions work to the benefit of members with more positive agendas, such as what remains of the centrists? Among the concessions are several that grant individual House members greater say over legislation and their leadership than they’ve had in the past. This and the GOP’s thin 222-213 majority give potentially significant influence to small but determined coalitions of any makeup, not just those on the far right.

The centrist ranks of the House are slim and getting slimmer with each election cycle. However, there are pockets of members from both parties who arguably still fit this description: the New Democrat Coalition, the Democratic “Blue Dog” Coalition, the Republican Governance Group, and perhaps most promising, the bipartisan Problem Solvers Caucus. If a critical mass of centrist members (including at least five committed Republicans) was serious about developing a constructive agenda, courageous enough to work across party lines, and willing to invest the necessary effort, they could form an influential power base of their own within the closely divided House.

Small bipartisan “gangs” of Senators have successfully used this approach to sidestep their more partisan leaders and break impasses on important issues. Most recently, centrist Senator Joe Manchin virtually controlled the Senate agenda during the 117^th Congress thanks to its 50-50 split and the filibuster rule. (Of course, individual House members still have much less power to affect legislation than their Senate counterparts even with the recent rules changes.)

It’s true that the challenges would be great. Centrists receive scant attention compared to their more flamboyant colleagues from the fringes such as the Freedom Caucus and the Squad whose grandstanding plays much better with the politicized media, hyper-partisan donors, and monolithic primary voters who dominate today’s political landscape. These forces reward political polarization and reject anything short of ideological purity.

On the other hand, several factors make an effective centrist power base in the House more than a pipe dream. Most notably, Congress is ripe for true reform that moves it toward actually doing the people’s business. The public is fed up with Congress and its members from both parties. Congress ranks dead last in public confidence among American institutions measured by Gallup, coming in most recently with an abysmal 7 percent positive rating. And rightly so. Congress chronically fails to carry out its most basic constitutional responsibilities, leaving pressing national policy challenges unresolved and abdicating its authority to the executive branch and the courts. Its only aspect that remains reliably bipartisan is wild fiscal irresponsibility.

The public also gives extremely low marks to congressional leaders and other politicians of both parties. Contrary to the impression the media conveys, the American public is not nearly as polarized as the political classes. Most Americans prefer moderation, compromise, and problem-solving over political extremism and constant discord. A congressional coalition that embodies the former traits should appeal to ordinary citizens of all political stripes–Democrats, Republicans, and independents alike.

Additionally, House Republicans lack any serious plan for governance. McCarthy has no clear goals other than obtaining and presumably retaining the speakership. His tormentors on the right likewise lack any realistic policy agenda. Some are just self-promoters; those capable of looking beyond themselves seem more interested in undermining the federal government than running it. Also, Trump no longer inevitably pulls the strings of congressional Republicans.

In short, no Republican agenda for the 118^th Congress is on the horizon beyond politicized investigations, quixotic show votes, and games of chicken over government shutdowns and debt defaults. A constructive and substantive House agenda aimed at real governance could fill the policy void.

Such an agenda might start with a few basic planks that should resonate widely with the public:

• • A firm commitment to oppose government shutdowns and default on the national debt.
  • Support for a return to the “regular order” of timely enacting individual appropriations bills and opposition to rushed, opaque “omnibus” bills. (Things the House leadership has already endorsed.)
  • High priority oversight and legislative initiatives to combat massive fraud, waste, and abuse. (The federal government made an estimated $281 billion of improper payments in 2021.)
  • Concrete initiatives to address major performance shortcomings in the federal government that attract little political or media attention but are a great disservice to American citizens. (GAO’s “high risk list” provides a roadmap.)
  • Rational and achievable steps to get the unsustainable federal debt, which currently exceeds $24 trillion, under control. (The blueprint developed by the nonpartisan Committee for a Responsible Budget is a good starting point.)

From there, a centrist group could select from an extensive menu of important policy issues that divide the political extremes but offer solutions that have broad public support. They include healthcare, immigration, crime, and tax policy, just to name a few.

Ironically, to be successful a centrist coalition would need to borrow some tactics from the more extreme House groups such as aggressively seeking publicity and external support. While a centrist agenda lacks bombast that generates headlines, it should spark the interest of whatever media and other influencers remain serious and not too ideologically biased. In terms of funding, one advantage some high-profile fringe members have is relying primarily on small donors, which enables them to avoid dependence on major PACs and the like. A centrist coalition could also employ this model.

Finally, an effective centrist coalition would have to be willing to use hardball tactics when necessary, recognizing that they hold the speaker’s fate in their hands. If, for example, McCarthy bowed to right wing pressure and refused to allow a floor vote on essential legislation such as a stopgap funding measure or one needed to avoid a debt default, the coalition could join with a presumably united Democratic minority to replace him as speaker.

The House Select Committee to Investigate the January 6 Attack on the United States Capitol had the potential to make major contributions to understanding the disgraceful events of January 6, 2021, and preventing a recurrence. As it concludes its work, what did the Committee accomplish?

The Committee’s main accomplishment was developing a clear and compelling exposition of Trump’s many transgressions relating to January 6 and indeed the whole post-election period. While it uncovered no game-changing new evidence, the Committee did add a great deal of corroborating detail as well as some dramatic flourishes.

The Committee presented its work mainly through professionally choreographed hearings that resembled a TV miniseries more than a typical congressional investigation. The Committee’s case against Trump, which relies mainly on the testimony of Republican witnesses, should be highly persuasive to all but diehard Trump acolytes. It demonstrates beyond reasonable doubt that Trump’s reckless behavior led directly to the riot and that his dereliction enabled it to fester for hours. It also establishes to a virtual certainty that Trump’s claims of a stolen election were utterly, and almost certainly knowingly, false.

While the Committee’s approach has been criticized as one-sided, the GOP is mainly responsible for this. Republicans voted down legislation to establish an independent, bipartisan commission to investigate the events of January 6, leaving a congressional committee as the only alternative. House Republican leaders then foolishly chose to boycott the Committee, and Trump along with many of his supporters refused to cooperate with it. In any event, the story of January 6 as regards Trump has only one credible side. His behavior was clearly impeachable on several grounds and demonstrated his unfitness for public office. Whether it was also criminal remains to be seen.

However, the Committee largely ignored a parallel January 6 scandal that rivals Trump’s outrageous behavior: the epic security failures that allowed an unruly gang of yahoos to successfully take over the seat of our democracy. The January 6 rioters included some truly bad actors who committed serious acts of violence in breaching the Capitol. For the most part, however, the rioters were unarmed, unorganized, and unfocused. How could a ragtag mob like this seize the Capitol of the United States and do so with relative ease? Why did it take so long to clear them out? And most important, what does their success portend for a possible future attack on the Capitol that might be better organized and more weaponized?

While individual police officers offered heroic resistance, their leadership failed them as well as Congress and the American people. Law enforcement agencies were woefully unprepared for the assault on the Capitol. (Some experts describe January 6 as the worst U.S. intelligence failure since 9/11.) Once the Capitol was breached, the agencies were unable to mount a coherent response for hours thereafter. Had security forces properly prepared and effectively executed their responsibilities, the attack, if it came at all, almost surely would have been repelled.

The few existing inquiries into January 6 security failures describe a host of problems including underestimating threats, poor planning and coordination, lack of leadership, failure to share intelligence, and bureaucratic indecisiveness. Recently released interview transcripts show that such problems were specifically made known to the Committee. Several congressional law enforcement officials resigned in the aftermath of the riot. However, there has been no other accountability on the part of law enforcement. Rather, agencies obfuscate, contradict, and blame each other. (See, e.g., here and here.) Even where countermeasures have been identified, agencies are slow to implement them.

Nevertheless, the Committee, in its singular focus on Trump and apparent zeal to fix exclusive blame for January 6 on him, essentially turned a blind eye to these security failures. The Committee’s hearings completely passed over them and its final report gave them short shrift. Two appendices to the report describe law enforcement and intelligence actions but provide no useful analysis.

The Committee has been widely (and rightly) praised for its exhaustive treatment of all things Trump relating to January 6. Its inattention to security issues has received considerably less attention, although it has not gone entirely unnoticed. (See here and here.) One commenter pointedly observed:

“The [report] summary systematically elides the egregious failures of law enforcement and intelligence agencies to predict and respond to the violence of Jan. 6. More than that, it goes out of its way to present those agencies in a positive light, despite their catastrophic neglect.”

The Committee’s disregard of security issues is particularly mystifying since they were a key part of its mandate. The House resolution establishing the Committee, as set forth on its website, specifically recites some of the intelligence and law enforcement failures relating to January 6 and lays out a number of specific security-related subjects for the Committee to investigate. Even the Committee staff was evidently taken aback by its apparent indifference to these subjects.

On balance, the Committee’s failure to address security issues outweighs its accomplishments regarding Trump. The basic narrative of Trump’s outrageous behavior was all too clear before the Committee began its work. The Committee usefully reenforced and expanded upon this narrative but came up with nothing fundamentally new. On the other hand, the equally outrageous security failures are more complex, obscure, and difficult to sort through. They cried out for greater scrutiny, which the Committee could and should have provided. Instead, it produced nothing worthwhile on this crucial front.

 

 

 

 

 

 

 

 

Background. Article I, section 4, clause 1 of the U. S. Constitution, known as the Elections Clause, provides that the times, places, and manner of holding congressional elections “shall be prescribed in each State by the Legislature thereof,” subject to potential revision by Congress. Pursuant to this authority, the North Carolina legislature enacted a redistricting map in 2021 that heavily favored Republicans. In the ensuing litigation, the state’s courts determined that the legislature’s map constituted a partisan gerrymander in violation of the state constitution. The courts then developed and substituted a new redistricting map that was used for the 2022 midterm elections.

In Moore v. Harper, recently argued before the U.S. Supreme Court, the North Carolina legislature challenged the authority of its state courts to overturn its redistricting map and replace it with their own. The challenge is based on the so-called “independent state legislature” (ISL) theory. The ISL theory posits that by vesting authority to prescribe congressional election rules specifically in the “Legislature” rather than the state as a whole, the Elections Clause exempts the legislature’s exercise of this authority from the checks and balances that would ordinarily apply under the state’s legal regime. Thus, the theory goes, state courts have no power to review exercises of this authority for compliance with the state constitution; indeed, the legislature is not bound by the state constitution when exercising this authority.

Problems with the ISL theory. There are many. For starters, nothing in the language of the Elections Clause says or implies that state legislatures assume a unique role completely divorced from the normal constraints applicable to them when enacting election rules. On its face, the language simply assigns a function to the state legislatures, taking them as it finds them. Nor is there any evidence that the language was understood to have a larger, and indeed radical, meaning. The Supreme Court observed in Arizona State Legislature v. Arizona Independent Redistricting Commission that, based on the historical record, the dominant purpose of the Elections Clause was to empower Congress to override state election rules, not to affect how states enact them.

Next, the legislature does not in fact exercise exclusive state authority when acting under the Elections Clause. Decades ago, the Supreme Court held in Smiley v. Holm that state redistricting legislation was, like other legislation, subject to state constitutional requirements for presentment to the governor and potential veto. Petitioners in Moore do not challenge this decision.

Next, the Supreme Court has in the past assumed that state courts have authority to review state legislation prescribing election rules for compliance with the state constitution. In Rucho v. Common Cause, the Court held that partisan gerrymandering presents nonjusticiable political questions beyond the reach of the federal courts. However, the majority opinion assured that the states were “actively addressing the [gerrymandering] issue on a number of fronts,” including state judicial decisions. (Gerrymandering has in fact become less a problem than it used to be due in part to state court interventions.)

Next, the state judiciary cannot as a practical matter be excluded from any role regarding Election Clause laws. Enforcement and application of these laws inevitably involves litigation, which in turn requires state courts to issue decisions interpreting them.

Finally, to conclude that the Election Clause liberates a state legislature from its own constitution would be incongruous in the extreme and violate principles of federalism. Indeed, the Supreme Court noted in Arizona State Legislature, above: “Nothing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”

In sum, the ISL theory finds no support in the language or background of the Elections Clause, makes no sense conceptually or practically, undermines federalism, and contradicts past Supreme Court pronouncements on the Elections Clause. The far better view is that a state legislature when exercising authority under the Elections Clause remains subject to all the processes, checks, and balances that ordinarily apply to it. This includes review by state courts for compliance with the state constitution.

Invoking the ISL theory to bar state court review of alleged partisan gerrymanders under the Elections Clause is particularly problematic. It would immunize such gerrymandering from any judicial remedy. As noted, the Supreme Court has foreclosed federal judicial review. If the Supreme Court reneges on its assurance in Rucho and eliminates state judicial review as well, aggressive gerrymandering will surely intensify. History shows that both political parties will engage in this practice whenever they can get away with it.

An alternate theory. While the ISL theory is clearly overkill, it is important to uphold the authority the Elections Clause grants state legislatures to prescribe congressional election rules. They have the right to exercise this authority without infringement by other state entities, including state courts. And, since their authority is derived from the U.S. Constitution, there is a legitimate federal interest in ensuring that it is not usurped. The respondents in Moore acknowledge that some level of federal judicial review is warranted of state court decisions that contradict laws enacted under the Elections Clause, notwithstanding the total or near total deference normally accorded state court decisions that interpret and apply state law.

Based on the oral argument, it is likely that a majority of the justices will reach a decision in Moore that respects the authority of state legislatures under the Elections Clause along with the federal interest in protecting it while also respecting the states’ interest in ensuring that their laws operate in compliance with their own legal regimes. An approach balancing these important and potentially conflicting interests may be found in former Chief Justice Rehnquist’s concurrence in Bush v. Gore.

The Rehnquist concurrence. In Bush v. Gore, the Supreme Court famously (or infamously) overturned on equal protection grounds a decision by the Florida Supreme Court that ordered a statewide recount of ballots following the 2000 presidential election. Then Chief Justice Rehnquist wrote a concurring opinion, joined by Justices Scalia and Thomas, offering an additional basis to overturn the decision. He asserted that the Florida court’s decision undermined the statutory scheme enacted by the state legislature in violation of Article II, section 1, clause 2 of the U.S. Constitution, which provides (using language similar to the Elections Clause) that each state shall appoint presidential electors “in such Manner as the Legislature thereof may direct.”

Many pundits maintain that the Rehnquist concurrence represents a form of ISL, perhaps “ISL light.” This is clearly wrong; the Rehnquist concurrence does not embrace ISL at all. On the contrary, it assumes that state legislatures acting under the Article II clause (or by analogy the Elections Clause) are fully subject to the constraints that normally apply, including review by state courts. The difference is that federal courts have a greater role than they ordinarily would regarding state law issues to ensure that state courts do not usurp the authority of the state legislature granted by the U.S. Constitution.

Standard of review. If the Supreme Court does adopt a position in Moore resembling the Rehnquist concurrence, a key question will be what standard of review applies in scrutinizing state court decisions. Respondents argued that state courts should be accorded extreme deference. One maintained that deference should be “stratospheric” and another asserted that a decision should be upheld unless it was outrageous enough to suggest that the state court was “not acting like a court.” However, standards this high would be virtually insurmountable and provide no meaningful review. A more workable and familiar standard would be whether a state court decision is arbitrary and capricious. This standard still accords substantial deference to the state court decision.

Application to gerrymanders. Partisan gerrymandering is inherently suspect; even the Supreme Court acknowledged in Rucho that it is unjust and incompatible with democratic principles. Thus, most state court decisions striking down partisan gerrymanders likely would survive federal review under an arbitrary and capricious standard even if they relied only on broad concepts from their  constitutions. This includes the North Carolina Supreme Court decision at issue in Moore. There is nothing in the North Carolina constitution specifically addressing partisan gerrymandering. However, the state court concluded that the practice violated the right of voters to have all votes count equally based  on several state constitutional provisions including those guaranteeing its citizens free elections and equal protection of the laws.

In addition to examining the legal reasoning, federal courts reviewing a state court gerrymandering decision might consider the practical result of the decision. For example, if a state court converted a legislative electoral map heavily favoring one party into one heavily favoring the other, this would be strong evidence of an arbitrary and capricious decision. In Moore, however, the result reached by the North Carolina Supreme Court was eminently reasonable. Experts estimated that the gerrymandered map the court rejected would have given Republicans a 10-4 edge in House seats, although the state’s electorate is roughly split 50-50 between Republicans and Democrats. Under the substitute map the court adopted, each party won seven House seats in 2022, mirroring the composition of the electorate.

Other applications. When would a state court decision contradicting legislatively enacted election rules violate the U.S. Constitution? A Pennsylvania Supreme Court decision revising the legislature’s rules governing the 2020 election is a likely example. The Pennsylvania legislature appealed this decision to the United States Supreme Court but the Court ultimately declined to hear it, presumably because it became moot. At an earlier stage, however, Justice Alito (joined by Justices Thomas and Gorsuch) issued a statement indicating that the Pennsylvania court decision was probably unconstitutional. As he noted, the state court itself acknowledged that the election law provisions it overrode were neither ambiguous nor inconsistent with the state constitution.

Conclusion. The ISL theory is wrong in virtually every way a legal theory can be. Invoking it to foreclose any judicial review of gerrymandering affecting federal elections would be particularly egregious. At the same time, state courts cannot be allowed to usurp the authority the U.S. Constitution specifically grants their legislatures to enact federal election rules. Therefore, it is appropriate for federal courts to review state judicial decisions that countermand legislative rules impacting federal elections to ensure that they are not arbitrary and capricious. Applying this standard, the decision of the North Carolina Supreme Court at issue in Moore v. Harper should be upheld.

 

Trump’s losses mount.

As previously noted, Donald Trump was the biggest loser of the midterms. His heavy influence over Republican primary choices affirmed his continued dominance of the party; however, their poor showing in the general election highlighted his lack of appeal beyond his base. Republican candidates opposed by Trump or who kept their distance from him fared much better. Non-Trumpist GOP House candidates outperformed the Trumpists by five percentage points nationwide. Late-breaking election results brought more bad news for Trump—e.g., Palin’s loss and Murkowski’s win in Alaska; Lake’s loss in Arizona; reelection of the two House Republicans who voted for his impeachment and survived to the general election.

Other recent events cast further doubt on Trump’s viability as a 2024 candidate or kingmaker. His announcement of another run for president was greeted with more skepticism than enthusiasm among Republican influencers; major donors are apparently rethinking their support. Democrats are licking their chops at the prospect of facing Trump again in 2024. The Justice Department’s appointment of a special counsel to investigate Trump for possible crimes is yet another blow. This and the many other investigations of Trump may energize his base but will further deter most everyone else. Things could get even worse if any investigations lead to criminal charges and, worst of all, conviction.

Democracy won. 

Major concerns–both real and imagined–have arisen in recent years over the integrity of U.S. elections. The 2022 midterms did much to allay those concerns.

Voting rules. Several red states enacted laws to tighten voting procedures, motivated by (unproven) allegations of voter fraud as well as apprehension that liberalized voting procedures instituted in response to COVID went too far. Democrats voiced (dubious) outrage over these laws, accusing their proponents of racist “Jim Crow” like voter suppression. Generally strong voter turnout in 2022 confirmed that such accusations were greatly exaggerated. This was particularly true in Georgia, the prime target of voter suppression hyperbole.

Gerrymandering. Here also election results undercut the rhetoric. Gerrymandering of electoral districts has long been seen as a threat to democracy, mainly by giving unfair advantage to Republicans. Both parties engage in gerrymandering when they can get away with it; however, state courts have started cracking down on the practice and more states are turning to independent commissions for redistricting. As a result, gerrymandering is less significant than it used to be—at least for federal elections. It did not benefit Republicans overall in this year’s midterms. Republican House candidates received more votes than Democrats by several percentage points nationwide but won only a bare House majority.^[1]The Supreme Court’s decision in Moore v. Harper could be a wild card here for the future.

Certification of election results. By the time of the midterms, the main election integrity concern shifted (appropriately) from how votes are cast to how they are counted. Here again, the midterms are cause for optimism as the tide turned against election denial tactics pushed so hard by Trump and his allies. Candidates who actively embraced Trump’s stolen election lies lost most competitive elections. Notably, all election deniers running for state offices with election administration roles in potential swing states lost. In another encouraging sign, losing GOP candidates have so far refrained from invoking Trump’s stolen election line.^[2]This could change in Arizona. Finally, Congress appears ready to amend the Electoral Count Act to address abuses in the congressional certification of presidential election results. (See here and here.)

Vote counting delays. One problematic aspect highlighted by the midterms, however, is the excessive time it often takes to count votes. Key electoral results were unknown for days and even weeks following November 8. One reason for this is the closeness of many races, but state voting laws also played a major role. Liberalized voting procedures expand the means and time frames for voting but make vote tabulation more complicated, labor-intensive, and time-consuming. While these procedures may enhance voter participation, the delays they cause can diminish public confidence in the integrity of elections and provide fodder for claims of fraud. States, and jurisdictions within states, vary in how efficiently they deal with vote counting challenges. Another difference is that some states prohibit counting mail-in ballots until election day. Repealing these prohibitions and allowing ballots to be counted as they are received is one obvious means of expediting election results without sacrificing voter convenience.

Abortion was a major issue in some places, but may have less impact on future federal elections.

Exit polls indicate that abortion was an important issue for many voters. The Supreme Court’s Dobbs decision, overturning Roe v. Wade, probably gave Democrats a significant boost, at least where abortion-related measures were on the ballot or there were other threats to abortion rights. For Republicans, the Dobbs decision was akin to the dog finally catching the car it has been chasing and not knowing what to do next. Republicans who advocated extreme anti-abortion measures that had no consequences with Roe in effect were caught flat-footed once it was overruled. This hurt them politically in the 2022 elections.

Abortion should become more of a state than a national issue in the future. There is little chance Congress will pass major abortion legislation, assuming it could constitutionally do so. Dobbs essentially returned abortion issues to the states, but these issues are complicated and Americans have nuanced views about them. Over time, both anti-abortion and pro-choice absolutists may be forced to move closer to mainstream public opinion as the issues work their way through the democratic process.

The political parties remain disconnected from much of the electorate.

Democrats were more upbeat than Republicans over the election results since the widely predicted “red wave” did not materialize. However, neither party has much to celebrate. Most Americans are dissatisfied with the state of the Nation and with their electoral choices. Almost three-quarters of Americans think the country is headed in the wrong direction, and public confidence in most American institutions is quite low. Voters strongly disapprove of both political parties and their leaders. (See here and here.) One pundit described the 2022 midterms as a rerun of the 2020 election: “Voters made the same grudging choice — they rejected the Trumpist style and substance of the G.O.P. but without embracing the Democrats — because they were given the same unappetizing menu.”

Such widespread public disaffection is not surprising. Republican and Democratic partisans are ever more polarized and hostile to each other, as are their respective media echo chambers. They prefer demonizing each other to rational, civil engagement aimed at finding solutions to the Nation’s problems. In all of this, they drift farther away from less ideologically driven independents and moderates who make up the largest segments of the electorate. (See here and here). Even within the parties, most voters fall outside the extremes. Overall, only nine percent of voters identify as “very conservative” and only seven percent as “very liberal.”

On the whole, therefore, American voters are more pragmatic and open to compromise than the activists who increasingly set the agenda for the two political parties. (See here and here.) Indeed, a comprehensive University of Maryland study found broad areas of agreement among the American public and across party lines on a host of major policy issues. The study concluded that the polarization of our politics stems not from the citizenry but from special interests and their lobbyists who lavish money on our politicians and apparently exert greater influence over them than their constituents.

Lessons from the midterms for both parties.

One obvious lesson for Republicans is that they need to somehow exorcise Trump. Granted, this is a tall order. While Trump is almost surely unelectable in 2024, he could win the GOP nomination if his base sticks with him and other candidates split the primary vote. Even if Trump isn’t the GOP nominee, he could play spoiler by discouraging his base from voting or by running as a third-party candidate. Neither prospect is remote since Trump’s only real interest is, of course, himself. Another lesson for Republicans is that even if Trump can be neutralized, they should avoid nominating a Trump clone. While some of Trump’s policies have broad appeal, his extreme divisiveness and combativeness do not.

The first lesson for Democrats is that they can’t rely on Trump continuing to be the gift that keeps on giving. The second is that his involvement masked serious vulnerabilities they need to address. Had Trump stayed out of the midterms, the predicted red wave might well have occurred. Republicans not closely aligned with Trump were generally successful. Also, traditionally overwhelmingly Democratic voting blocs—Hispanics, Asian Americans, and African Americans—continued their modest but noticeable shift away from the party. (See here and here.) Democrats are increasingly tied to a “woke” agenda that resonates with younger, college-educated, mostly white voters as well as the elites who dominate academia and the media but turns off most other voters.

The best overall lesson for both parties—clear from the midterms and long before–is that they could greatly enhance their electoral prospects by moving away from their extremes and closer to the more centrist, commonsense  territory where most voters reside. If either party could establish itself as a credible and constructive force for doing the people’s business, it would likely achieve political dominance for years to come.

As various themes emerge from the 2022 midterm elections, one stands out above all others: the thorough repudiation of Donald Trump. While Trump was not on the ballot, he did all he could to make the election about him. He largely succeeded in this, but the results were ugly for him and his party. Most of the candidates he pushed in the primaries failed in competitive general elections. Even some who prevailed ran well behind other Republicans on the ticket. For example, J.D. Vance probably won his Senate seat despite rather than because of Trump; GOP Governor DeWine ran far ahead of Vance and likely pulled him over the finish line. (Tellingly, Vance ignored Trump in his victory speech.)

By contrast, GOP candidates whom Trump opposed or stayed away from did well. In particular, Trump nemesis Brian Kemp handily won reelection as Governor of Georgia and potential nemesis Ron DeSantis scored an overwhelming victory in Florida.

Candidates who actively campaigned on Trump’s bogus stolen election claims fared poorly in competitive elections. Thankfully, all election deniers running for offices with election administration roles in potential swing states lost. We can also be thankful that losing GOP candidates across the board have eschewed Trump’s stolen election tactics—at least so far.

The abysmal results of Trump’s efforts this year represent only the latest in a string of political failures on his part. With Trump at the helm, Republicans lost the House in 2018 and the presidency in 2020. Trump’s stolen election antics in the wake of his 2020 defeat are widely considered directly responsible for the loss of the two Georgia seats that cost the GOP its Senate majority.

It’s fair to say Trump personally cost Republicans control of the Senate again this year by discouraging strong GOP candidates from running in several states and backing weak candidates in others, based solely on their professed fealty to him. Democrats will wind up actually gaining a Senate seat if Herschel Walker, Trump’s most pathetic pick, loses his runoff election in Georgia. Trump was also a drag on the GOP’s unexpectedly challenging efforts to regain control of the House. He helped flip two safe Republican seats to the Democrats by engineering successful primary challenges by weak candidates to Republican incumbents who had voted to impeach him. (See here and here.)

Some right-leaning media outlets acknowledged Trump’s electoral failures. A Wall Street Journal editorial declared him the Republicans’ “biggest loser” of election night. The New York Post portrayed him as “Trumpty Dumpty.” Outlets on the left enthusiastically chimed in, labeling the 2022 elections Trump’s “emperor has no clothes” moment. (See here and here.)

Democrats anticipated Trump’s potential as a major liability for the GOP in 2022. They invested heavily in Republican primaries to promote his favored candidates, whom they judged easier to beat in the general election. Such meddling was widely (and rightly) condemned as a cynical abuse of the electoral process. However, it worked in many close contests. No doubt we will see more of this if Trump chooses to run for president again in 2024 or seeks to reprise his failed role as kingmaker.

Exit polls confirmed Trump’s negatives. Voters viewed him unfavorably by a margin of 58 to 39 percent. These numbers are worse than President Biden’s low marks and suggest that Trump would lose the presidential election again in 2024 against even a weak Democratic candidate.

When all the above political failures are added to Trump’s outrageous, clearly impeachable, and perhaps criminal conduct following his 2020 loss, one might think sentient Republicans would be chomping at the bit to move on from him. Trump proves over and over that he is focused entirely on himself and cares nothing about the country, the Republican Party, or even his most dedicated followers. It’s hard to imagine anyone more transparently unfit, substantively and politically, to run for president—or even to play a significant role in the 2024 election. As of this writing, however, it appears Republicans may not be ready to stop following Trump over more cliffs. Said one political operative: “We tend to be slow learners.”

There are probably two main factors at play here. First, Trump retains an unshakable and sizable base of cult-like followers that is not open to persuasion and may not be transferable even to Trump-imitating candidates. Second, many prominent Republican politicians are craven opportunists who, like Trump, put their personal interests above country and party. They have lived in fear of Trump and dependent on his favor for years. While they surely recognize his liabilities, it will be very hard for them to muster the courage to oppose him.

Some signs are emerging. Rep. Elise Stefanik, a Trump sycophant who replaced Liz Cheney in the House GOP leadership following her cancellation for opposing Trump, endorsed Trump for 2024 three days after the election. She described him as still the leader of the Republican party and “the most popular Republican in America.” Kevin McCarthy, who desperately wants to be Speaker if Republicans gain the House majority, has been noncommittal so far. However, he has a history of backing off criticism of Trump and is already under pressure from Trump operatives and the Trumpist House Freedom Caucus.

On the Senate side, some members are trying to shift blame for the GOP’s poor election showing from Trump to Mitch McConnell. Of course, McConnell is a long time Trump whipping boy who most recently had the audacity to tell the truth about the “candidate quality” problem facing Republicans this year thanks to Trump.

How all this plays out remains to be seen. We should learn more from the reactions if Trump goes ahead with his anticipated (albeit incongruous) announcement on November 15 to run again for President.