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When Did the Supreme Court Do Better?

The most recent term of the Supreme Court left plenty of liberals lamenting how conservative that tribunal had become. And while the court conversely left plenty of conservatives happy, there has been some grumbling in right-leaning circles over whatever part of the glass appears to be empty. Those critics do not point to any constitutional apostasy, but complain because of the occasional praiseworthy judgment that did not carry more sweeping pronouncements of law.

Lost in such criticism is a sense of historical perspective about a term that included no rulings on a major constitutional or statutory issue that rejected originalism or textualism. It held as violative of the “free exercise” clause New York’s COVID restrictions on worship (Roman Catholic Diocese of Brooklyn v. Cuomo) and Philadelphia’s refusal to contract with Catholic Social Services to continue providing foster care (Fulton v. City of Philadelphia). It defended the freedom of association against California’s cynical argument that it had a legitimate reason to force nonprofits to disclose the names of their donors (Americans for Prosperity Foundation v. Bonta).

The court vindicated property rights, striking down a California regulation that authorized union organizers to physically occupy growers’ property (Cedar Point Nursery v. Hassid). It defended the separation of powers by agreeing with a challenge to limitations on a president’s power to remove the Federal Housing Finance Agency director (Collins v. Yellen). It rejected a reckless interpretation of the Voting Rights Act in a challenge to widely accepted restrictions on ballot harvesting and out-of-precinct voting (Brnovich v. Democratic National Committee).

Indeed, as David Rivkin and Andrew Grossman pointed out, “only textualist reasoning can achieve a majority on today’s court.” A decisive reason for this is the court’s three most recent arrivals. Over the course of this last term, Justice Clarence Thomas agreed in merits cases with two of them, Justices Neil Gorsuch and Amy Coney Barrett, more than with any other colleague.

My challenge to the naysayers who fail to recognize the dramatic level of progress on the high court is this: identify the last term you think the court did better.

Surely it was not the previous term, when the court (over Justice Brett Kavanaugh’s dissent, it should be noted) rewrote the Civil Rights Act of 1964 to include sexual orientation and transgender status; stymied the Trump administration’s rollback of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program; and struck down an abortion regulation aimed at women’s health. 

The DACA ruling continued a trend of politicizing administrative law from the prior term, when the court set aside the Trump administration’s reinstatement of a citizenship question to the census. And the abortion ruling continued the court’s extra-constitutional foray into judicially legislating the issue of abortion, starting notoriously with Roe v. Wade in 1973 and continuing in later rulings in 1976, 1979, 1983, 1986, 1990, 1992, 2000, and 2016.

Was there a better term than the one begun in October 2020 during the last 50 years? Surely it was not 50 years ago, when the court muddled religion jurisprudence for generations with its decision in Lemon v. Kurtzman, particularly evident in attempts to apply the Lemon test in 1982, 1985, 1987, 1989, 1992, 2000, and 2005. Or 49 years ago, when the court in Furman v. Georgia effectively ended the death penalty by holding existing laws unconstitutional. Although the court lifted its virtual moratorium in Gregg v. Georgia (1976), decades of Eighth Amendment decisions followed based more on justices’ personal views of criminal punishment during given snapshots of time than on the law.

Then, of course, there were also terms in which the court upheld the charging of fees by unions to government employees who did not wish to join (Abood v. Detroit Board of Education, 1977); set standards that undermined the separation of powers with excessive deference to unelected bureaucracies (Chevron v. Natural Resources Defense Council, 1984, and Auer v. Robbins, 1997) and insufficiently accountable officers like the independent counsel (Morrison v. Olson, 1988); allowed the government to take private property from one private owner to give to another in exercising eminent domain (Kelo v. City of New London, 2005); overrode Congress’ legitimate process to handle challenges to the capture of enemy combatants on overseas battlefields (Boumediene v. Bush, 2008); struck down the Defense of Marriage Act (United States v. Windsor, 2013); and invented by judicial fiat a constitutional right to same-sex marriage (Obergefell v. Hodges, 2015).

These examples only scratch the surface. But they prompt a question to those who declare conservative judicial defeat: When did the Supreme Court last have a better term than the one just concluded?

Carrie Campbell Severino is president of the Judicial Crisis Network.

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Protect Grandma, Not Just Britney, From Conservatorship Abuse

Britney Spears has gained attention in her conservatorship case because she is a pop star, but usually it is an elderly grandma or grandpa who suffers from abuse in the system. This attention, fortunately, is bringing needed scrutiny to the crisis, which will hopefully bring relief to the elderly caught in the conservatorship trap as well.  

As people learn more about this issue, it is important to understand the utter and total power that guardians, who oversee a ward’s health and welfare, and conservators, who oversee all of the ward’s financial assets, have over their wards. It is this level of control and a system that requires guardians and conservators to be paid out of the ward’s estate — while they are supposed to be protecting it — that creates the inherent conflict of interest at the center of this crisis. 

It’s way overdue for urgent action by our national leaders to address it. 

Just this week, a bipartisan bill was introduced designed to deliver common-sense solutions. The FREE Act will guarantee that wards are assigned a case worker and allow wards to petition the court to replace their court-appointed guardian with a public one. Both social workers and public guardians will also be required to disclose their financial records under the legislation to prevent conflicts of interest. 

Lawmakers who have recently begun to take notice of conservatorship abuse are quickly learning that comprehensive data do not exist to guide their efforts. Recently, two Democrat senators sent a letter to the Department of Health and Human Services and the Department of Justice pressing for information from the federal bureaucracy. The FREE Act addresses this deficiency as well by requiring states to maintain an up-to-date database on people under conservatorships and guardianships.

With an estimated 1.3 million American adults currently under some form of conservatorship, and around $50 billion in assets at stake, it’s remarkable that we don’t have access to detailed information that might allow us to identify abuse cases. This deficiency exists despite the fact that conservatorship reform advocates have been trying for years to get some sort of national database established.  

Interestingly, this issue seems like one of the very few these days capable of garnering bipartisan support. Republicans have become vocal about the need for reform too. Rep. Jim Jordan and others, for instance, have called on House Judiciary Committee Chairman Jerry Nadler to hold hearings soon.

Of course, the financial toll on victims is mind-bending. According to the American Bar Association, conservatorship abuse robs American seniors (and their families) of somewhere between $2.9 billion and $36.6 billion every year. That is a distressingly large range when lives are genuinely at stake. If we don’t even know whether we’re dealing with $2.9 billion in fraud or more than 10 times that amount, how can we possibly hope to protect the victims of that fraud?  

So, while #FreeBritney is shining a spotlight on conservatorship abuse, there are countless people currently suffering at the hands of abusive guardians. These stories should also be told. In fact, entire websites have been dedicated to documenting their nightmares in conservatorship. In some cases, sons and daughters are prohibited from visiting their own parents in assisted living facilities. In other cases, court-appointed guardians charge exorbitant fees for mundane tasks such as opening the mail and paying routine bills, gradually depleting their ward’s assets until nothing is left to pass on to children and grandchildren.  

And there are many targets of conservatorship who might not even be suffering mental decline and who must disprove questionable claims by professionals to protect their lives and assets against a system where the advantages — from the power of the courts to the discretion of guardians to the access of workers in assisted living centers — are stacked against them. 

It should be clear to anyone with an ounce of compassion and a sense of justice that the status quo must be changed. Families across the country are crying out for help and they need elected officials to take a stand by making changes in the law and prosecuting those who have abused their wards and committed financial crimes.  

It is a shame that it took one celebrity’s story of abuse by conservators, one overseeing her body and one commanding her finances, to highlight many other stories of abuse of everyday people. Nonetheless, this empathy and anger for a single celebrity can now be directed towards positive change in America. 

With the help of national leaders now investigating the issue, we must enact protections to prevent abuse by guardians and conservators for the elderly and others. If leaders step up now, there can be hope that this crisis will one day be solved.

Kimberly Guilfoyle is a former prosecuting attorney and former Fox News host who served as an adviser President Trump during the 2020 campaign.

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Going Back to ‘Normal’ Is Too Risky

Going Back to 'Normal' Is Too Risky

(AP Photo/Shafkat Anowar)

On the heels of the 31st anniversary of the Americans with Disabilities Act, David M. Perry argues that Americans must retain the gains in accessibility achieved during the pandemic. We need to hold on to our flexible, hybrid world, in work, school, and play, wherever possible, he says.

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Cruz: Biden’s ‘Crazy-Ass Ideas’ Will Lead to GOP Majority

It was Madison Cawthorn’s turn to pay for lunch, and because the freshman congressman bought the barbeque Wednesday, he got to make a short speech behind closed doors.

The North Carolina lawmaker told his more senior colleagues that “our people” only want to “swing for the fences” while Democrats, at least in his limited experience, were happy to move their plans forward “inch by inch.” And then, Cawthorn wrapped his remarks by urging the Republican Study Committee to “be more willing to accept a limited victory.”

Sen. Ted Cruz sat nearby silently picking at his brisket. 

One of the original heroes of the Tea Party and the scorched-earth strategy it embodied, Cruz hadn’t walked over from the Senate to talk about wins on the margins. He warned his House counterparts that “Democrats are deadly serious” about their agenda, and said they would “go to any lengths” to pass it. He complained that too many in the Grand Old Party still treated governing “like we are playing croquet in the back lawn.” Cruz said it was time “to hold the line.”

This was the message the Texas senator delivered to a receptive conservative congregation in the basement of the Capitol on Wednesday. He said things would get worse for them before they got better. Much worse. Cruz has a pendulum theory of politics. So while he came to offer some hope, “to encourage you,” he began with a rather bleak view of things.

The way Cruz sees it, President Biden’s honeymoon has turned into “an absolute train wreck.” At home, illegal immigrants are pouring across the southern border unchecked, gasoline prices continue to climb, and inflation alarm bells are ringing off the hook, ignored. Abroad, things are not much better. The White House surrender on the Nord Stream pipeline amounts to “a generational geopolitical mistake” that will line the pockets of “the next dictator in Russia” long after Vladimir Putin is dead and gone. And the Department of Justice’s dismissal of charges against visiting Chinese researchers was a disturbing sign of an administration trying to “make nice with the Community Party of China.”

The frustrated Republicans in the room nodded along at the doom-and-gloom, waiting on the promised good news. “Why is it that I’m optimistic then?” Cruz asked. “I’m optimistic because there’s a natural tendency in politics of the pendulum going too far in one direction.” This is reason for hope, in his estimation, because the White House is overreaching on every front, “and every time we see some crazy-ass ideas, we should be encouraged.”

It will be morning in America soon because “the country is waking up.” Cruz argued that the 2020 electorate was made up of people who couldn’t take any more mean tweets from the last president, so they pulled the lever “for nice Uncle Joe.” He added that those same voters “are now looking at his agenda and saying, ‘This is not what we signed off on.”

“There is a saying that history doesn’t repeat but sometimes it rhymes — I think Joe Biden is Jimmy Carter 2.0,” Cruz said, mixing an old maxim with current GOP messaging. “And the good news is it took Jimmy Carter to give us Ronald Reagan,” continued the two-term senator who finished second in the 2016 GOP primary and undoubtedly still harbors White House ambitions.

It is going to be rough for Republicans until someone can get on a debate stage with Biden. With Democrats in control of both houses of Congress, Cruz said, “they can ram through some really bad policy, they can spend a ton of money and raise taxes — and they are going to do it.” Until next year, Cruz told the assembled Republicans, “we have a responsibility to slow the damage.”

He puts their odds of taking the House at “80-20.” The Senate, because of a difficult map with more red seats than blue ones up for grabs, is “50-50.” Until Nov. 8, 2022, comes, Cruz continued, they basically have two choices: Republicans can “go down swinging as the Democrats ram through some terrible policy,” or “we roll over and let them do it to the country.” He didn’t tell them that either option would be pleasant — “look, there are consequences when you lose both houses of Congress and the White House.”

But the call to arms is second nature for Cruz. His brand was obstruction during the Obama years, and he came of age in the upper chamber goading the GOP into being more, not less, receptive to the conservative grass roots. These days, his messaging is writ large in Cruz campaign merchandise. During spring break season back in March, there were tank tops and trucker hats that would have been unthinkable a few short years ago. Thirty bucks buys a Cruz supporter a T-shirt emblazed with an exaggerated and clearly self-depreciating image of the senator’s mullet. The caption reads, “McConnell in the front, MAGA in the back.”

The campaign swag drew instant headlines. It also told a story about shifting factions within the Republican Party. As a freshman senator during the Obama years, Cruz irritated not just a Democratic president, but his own party’s leaders as well. Reelected to a second term in the Trump era, Cruz now finds himself simpatico with GOP brass in a political party trying to weather the Biden administration and an aggressive congressional Democratic majority.

Perhaps the invitation to Wednesday’s lunch also underscores the rightward shift of Republicans. After all, the Republican Study Committee is the largest and most influential GOP caucus on Capitol Hill. The group’s chairman, Rep. Jim Banks of Indiana, has rallied the party, huddling regularly with Minority Leader Kevin McCarthy and turning the organization into a forum for potential 2024 contenders to audition. Members of the committee certainly liked what Cruz had to say Wednesday. They were particularly pleased with his pandemic politics.

In short order, Cruz condemned the re-masking recommendation from the Centers for Disease Control as “idiotic, not science,” mocked the speaker of the House as “Queen Pelosi” for fining vaccinated members who don’t don face coverings, and concluded that, with its latest masking policy, the administration “has ‘jumped the shark.’” He added, “We’re likely to see no Republicans complying with it in the states.”

While those arguments drew nods of agreement, Cruz spent most of his time railing against the president’s massive infrastructure package. “I’m worried about where the Senate is going to go,” he admitted, “and I recognize the old adage in the House that ‘Democrats are your opponents and the Senate is the enemy.’ There is some truth to that.”

Before he spoke to the RSC, one of the 10 or so Republicans open to the White House spending plan had texted him about the infrastructure funds that would head to Texas. In his telling, Cruz typed back, “I’m like, ‘How about you don’t take our money, then give it back to us?’” The room let out a collective laugh at that, and Cruz related the risk he sees his colleagues taking by backing any part of the initiative.

There are two proposals that make up that package. The first, the so-called $1.2 trillion “hard” infrastructure bill, would fund physical projects like roads and bridges. It has some bipartisan support. The second, a $3.5 trillion bill, takes a much broader definition of infrastructure to fund child care, health care and education priorities. Republicans uniformly oppose that part, which the White House hopes will include a pathway to citizenship for some of those in the country illegally. To circumvent a filibuster, Senate Majority Leader Chuck Schumer plans to pass it by going the budget reconciliation route.

Cruz warned that this two-track method would lead to the GOP’s own train wreck if enough of his Senate colleagues balked at conservatives’ objections and sided with Democrats. A vote for the “hard” package, he argued, would only grease the skids for the much broader, and far more expensive, component. He offered the RSC a fly-on-the-wall perspective of the contentious closed-door conference meetings, saying that about a dozen Republicans “want to cut a deal with all of their hearts.” He said there has been plenty of yelling.

“We’re having, in our lunches, knock-down, drag-out fights, with the rest of us going, ‘What are you doing?’” An infrastructure bill might be bipartisan, but he predicted the result would make the GOP into the president’s stooges: “Joe Biden is gonna run around and say, ‘Look, it’s all wonderfully bipartisan — I got these happy little Republicans celebrating the spending.”

If his colleagues don’t fight off both bills, if they cut a deal, they won’t just give Biden a win, Cruz argued; they would “put Republican fingerprints all over the inflation bomb that is exploding right now.” What is worse, they risk opening up “a backdoor way to repeal the filibuster.”

When Republicans controlled Congress and the White House, the rules governing reconciliation ruined many of their plans. Specifically, it was the Senate parliamentarian, who determines the procedure by which the chamber can avoid a filibuster and allow legislation to pass by a simple majority. That official can be overruled with a vote by the vice president — a case Cruz says he made “multiple times” in the Oval Office to then-President Trump and Vice President Mike Pence during the effort to repeal Obamacare. “I got laughed out of the room every time I made it,” Cruz recalled. “They said, ‘No, we’re not going to do that because Mitch [McConnell] doesn’t want to.” 

Democrats have no qualms about Senate norms. The difference now, he said, is that Vice President Kamala Harris has a more expansive view of the rules. That, and “their side is actually willing to do what it takes to ram their agenda through.” Cruz fears Democrats will use the arcane process as cover to also push through amnesty provisions. After that: HR1, the far-reaching voting rights bill backed by Democrats. “If you hear the phrase ‘election infrastructure,’” he told the room of Republicans, “run and hide.” He was half joking.

What about the other Joe, though? The moderate Democrat from West Virginia who opposes abolishing the filibuster? Cruz said he and Joe Manchin get along just fine, but after nine years in the Senate, he has never seen his colleague “once stand up to Chuck Schumer on any issue that mattered where he was the deciding vote.”

If that happens again, he predicted, the door to abolishing the filibuster would be wide open.

Perhaps Cruz and his colleagues might take inspiration from Texas Democrats, the ones who skipped out of Austin earlier this month to bring the Republican-controlled state legislature to a halt. Rep. Doug Lamborn of Colorado gave “a tongue-in-cheek” suggestion: “What if all the Republican senators fled to Austin and holed up in The Driskill hotel to deny Democrats a quorum?”

“You had me at Driskill,” Cruz joked, noting how former President Lyndon Johnson “used to sit there on the cowhide sofas drinking bourbon.” But Republicans won’t be sipping whiskey in exile anytime soon, at least not in trying to check Biden. Democrats have the numbers to run rough-shod over them even if they skip town. What should they do then? Cruz told his Republican brethren to lean on Manchin with “the carrot and the stick” — to call the West Virginian’s “oil and gas” donors if need be.

Manchin’s office did not respond to RCP comment request.

To get through the current presidency, to make sure Biden becomes another Jimmy Carter and to make straight the path for another Reagan, Cruz counseled the GOP study committee that they needed to show their base “we’re fighting with everything we’ve got as happy warriors.” But the Texan delivered a dire warning. “From y’all’s perspective,” he cautioned, “don’t count on the Senate to save you.”

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What Jim Jordan Would Have Said on Jan. 6 Panel

House Speaker Nancy Pelosi famously banned Republican Rep. Jim Jordan from the new select committee to investigate the Capitol riot. So when the committee met for the first time on Tuesday, Jordan was nowhere to be seen. But it turned out he was still attending a meeting of a select committee — the select committee on the coronavirus crisis. Pelosi, who said Jordan’s presence would diminish the “integrity” of the Capitol riot committee, apparently did not feel he would have the same effect on the COVID-19 committee, of which he is a member.

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