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Under Color of Law: July

By August 7, 2023November 29th, 2023News

Read Shan’s take on various political and cultural happenings (and Tweets!) below.

Trump World

As we all wait for what appears to be an inevitable second federal indictment of Trump, it is already clear that as righteous as these prosecutions may be, the timing is likely far too late. As I wrote in The Daily Beast: “The Trump and Nauta defense lawyers don’t need any brilliant or innovative legal strategies to slow down and delay the documents case trial. Standard tactics of delay will work just fine to postpone the case into the presidential election red zone. The only counter to this expected tactic would have been for Merrick Garland’s DOJ to have gotten off to a much earlier start.”

https://www.thedailybeast.com/trumps-trial-delay-strategy-is-criminal-defense-101

Legal Eyes

A person could be forgiven for looking at the end of the 2022-23 SCOTUS term decisions as being a mixed win for liberals and conservatives, but that would be wrong.

The high court’s rejections of conservative positions in such cases as the Alabama re-districting case and rejection of the outlier Independent State Legislature Theory (ISLT), are thinly cobbled-together majorities by Chief Justice Roberts in a desperate effort to keep SCOTUS from appearing to have gone “full-MAGA” (to borrow a paraphrase from Robert Downey Jr. in “Tropic Thunder”).

In the case of wins for Native Americans, it was mostly the force of Justice Neil Gorsuch’s dangerously powerful advocacy towing along his colleagues who don’t know (or care) nearly as much as Gorsuch does about Native American legal issues. But taken as a whole, the picture is of an institution gone far to the right with its reputation fracturing under the weight of repeated reveals of ethics problems for the only judges in the United States – and maybe the world – lacking a judicial ethics code, and, growing internal instability from the new majority’s aggressive willingness to overturn precedent.

The Senate Judiciary Committee’s Supreme Court Ethics, Recusal and Transparency bill is needed and years overdue:
https://www.thedailybeast.com/why-all-the-supreme-court-justices-united-to-avoid-accountability

Supreme Court Justices United to Avoid Accountability https://twitter.com/shanlonwu/status/1652345051094167561?s=20
https://www.thedailybeast.com/why-all-the-supreme-court-justices-united-to-avoid-accountability
https://www.npr.org/2023/07/01/1185623432/a-look-back-at-the-supreme-court-term-that-just-ended-and-what-lies-ahead

Here’s a look at two of the term’s noteworthy cases where SCOTUS shows its willingness to overturn existing precedent – as it did when it overruled 50-years worth of precedent by overturning Roe v. Wade – as well as its belief that they – as unelected officials – know best how to run the country all to further a conservative agenda long in the making.

The Affirmative Action Cases: Students for Fair Admissions Inc. v. President & Fellows of Harvard College, Students for Fair Admissions, Inc. v. University of North Carolina

As Amy Howe wrote in her blog: Howe on the Court: “In a historic decision, the Supreme Court severely limited, if not effectively ended, the use of affirmative action in college admissions on Thursday. By a vote of 6-3, the justices ruled that the admissions programs used by the University of North Carolina and Harvard College violate the Constitution’s equal protection clause, which bars racial discrimination by government entities.” To reach this result, SCOTUS effectively overruled the 20-year-old precedent of Grutter v. Bollinger which upheld the University of Michigan Law School’s consideration of race “as one factor among many.” Among the implicit structural racist assumptions in the SCOTUS decision, was the idea that Grutter had an implicit 25-year sunset clause allowing the conservative justices to effectively decide when prior racism had run its course. An example of the justices’ biases was ultra-conservative Justice Alito questioning the pro-affirmative action lawyers how they would answer a “simple argument that college admissions are a zero sum game?” For Alito, zero-sum means merit must be race-blind as though merit were some simple arithmetic computation. This assumes “merit” – an inherently malleable subjective concept – can be easily judged by people like Alito and Roberts. Chief Justice Roberts wrote that a “student must be treated based on his or her experiences as an individual – not on the basis of race” – displaying perfect color blindness from a man whose color has never been held against him.

Red Flag: Race Neutrality is the Next Fight: The case does not affect so-called “race neutral” admission policies but the very term begs the question. Admission essays speaking to race, recruitment, financial aid may all be allowed to take race into account which allows easy access to further challenge of even “race neutral” policies. As Howe notes:

“Although Thursday’s ruling essentially ended the use of race-conscious college admissions programs, the justices could soon consider whether the Constitution bars other efforts to increase diversity, even if those efforts to do not expressly take race into account. In May, the U.S. Court of Appeals for the 4th Circuit upheld the admissions policy at a prestigious Virginia magnet school over a challenge from a parent group, which alleged that although the policy was “race neutral” it nonetheless discriminated against Asian American students. The group is likely to appeal that ruling to the Supreme Court – possibly as early as this summer.”
https://www.scotusblog.com/2023/06/supreme-court-strikes-down-affirmative-action-programs-in-college-admissions/

Red Flag: Effect on Asians: There is no question Harvard discriminated against Asians with such practices as giving Asian applicants lower personality scores – acts that perpetuate racial tropes dehumanizing Asians. It’s also important to recognize effective legal strategy employed by the founder of Students for Fair Admissions – Edward Blum – a non-lawyer who has tenaciously fought to get his anti-affirmative agenda before a conservative Supreme Court. But the insidious aspect of the case is how it pits minorities against each other.

Deep Dive: Affirmative Action, we already know what campuses without it look like: Zachary Bleemer, an economist, has been following the impact of affirmative action for twenty years and the answer is clear: it fundamentally increases the success of each university. In 1998, California voters ruled to remove affirmative action. Zach studied the data between students who applied before and after this ruling and drew some relevant conclusions. 1) There was a massive decrease in minorities (specifically Black, Hispanic and indigenous folks) in selective universities, while higher numbers of White and Asian students in more selective schools increase. 2) The typical student who had less access to these selective school because of the end of affirmative action was making 5% less than if they’d have this access, but this did not happen to White and Asian students who were rejected from selective schools. 3) Access to more selective universities was more valuable to more marginalized groups.

The Student Loan Cases: Biden v. Nebraska, Department of Education v. Brown

To reach these conclusions, the court first went through the exercise of standing analysis by first dismissing the Brown case – involving two borrowers – as lacking standing and then deciding that the Nebraska case (where the challengers were six Republican states) had standing because one state – Missouri – had a state agency that would be harmed by the loan forgiveness. Clearly the court was more interested in a case brought by six Republican states than one brought by two actual student borrowers, and ignored the fact that the Missouri state agency had not actually joined the case.

Red Flag: CJ Roberts casual manipulation of standing doctrine upends the traditional gate-keeper function of standing. This is a dangerous trend where the high court ignores the Constitutional requirement of real case and controversy in order to decide what it wants to decide. See also the “fake” wedding website designer case – 303 Creative LLC v. Elenis – in which it turns out that the story of a gay plaintiff asking the designer to design a website turned out to be fake. https://www.newsweek.com/supreme-court-lgbtq-fake-case-reversed-1810397

Red Flag: Major Questions Doctrine – SCOTUS is continuing its reliance on this doctrine which allows the justices to pick and choose which issues they deem “major” enough to impose their will over that of the Legislative and/or Executive branches. CJ Roberts has used this doctrine to strike down the EPA’s authority https://www.thedailybeast.com/biden-already-has-congress-ok-to-cancel-student-loan-debt and as I wrote in The Daily Beast, this latest use of the Major Questions Doctrine really shows how we are being “ruled by the elites” – nine un-elected officials with life-long jobs.
https://www.thedailybeast.com/supreme-courts-student-loan-decision-shows-we-are-ruled-by-elites

Deep Dive:
https://www.vox.com/scotus/23791610/supreme-court-major-questions-doctrine-nebraska-biden-student-loans-gorsuch-barrett

Judiciary:

Two recent Biden administration federal judges picks: Julie Rikelman, the attorney who argued on behalf of the Mississippi abortion clinic before the Supreme Court in the case that led to the overturning of Roe v. Wade, was confirmed to be a federal appeals court judge. Nusrat Choudhury, a civil rights lawyer, was confirmed by the Senate as a federal district court judge in New York, making her the first female Muslim American and first Bangladeshi American to hold that position in U.S. history.

Rikelman and Choudhury are part of a precedent-setting number of appointees by President Biden who at this stage of his tenure trails only JFK in the number of federal judges appointed – an impressive pace considering JFK was more than thirty years younger! Unlike Trump, you won’t hear Biden bragging about what policy and societal changes he will accomplish through appointing federal judges, but instead the impact of his appointments will shape the country for years to come.

Biden’s appointments will serve to counter the 234 conservative appointments made by Trump in his four years, including Trump appointees like Florida district court judge Aileen Cannon who crucially delayed DOJ’s probe into Mar-a-Lago by granting Trump’s meritless request for a Special Master and Louisiana district court judge Terry Doughty who granted an injunction to interfere with federal agencies like HHS and the FBI from communicating concerns about disinformation to social media companies . This, of course, gave SCOTUS a 6-3 conservative majority. While much of the country’s attention is paid to SCOTUS appointments, the federal judiciary as a whole – in particular the courts of appeal – should be seen as the fields from which SCOTUS justices are harvested.

Just as significant as the number of appointees is their diversity: three-quarters of the confirmed nominees being women and more than two-thirds non-white. Unlike the Federalist Society’s judicial candidate incubation machinery, the Biden administration doesn’t have to use ideological litmus tests but can rely on a basic effect of diversity hires – diverse opinions and outcomes. It’s a fallacy that the federal judges and SCOTUS judges are part of some civil service system of meritocracy where only the best lawyers become judges that should be debunked. In law school there was a saying: “The A students become law professors, the B students judges, the C students partners in law firms, and the D students become politicians.” But whatever the flaws of the political appointment system, a system that produces a judiciary that looks more like what the country looks like will also likely produce judges that have a diversity of experience that better reflects our country. And that should be a good thing.

https://www.pewresearch.org/short-reads/2022/08/09/biden-has-appointed-more-federal-judges-than-any-president-since-jfk-at-this-point-in-his-tenure/#:~:text=Biden%20has%20appointed%20more%20federal,this%20point%20in%20his%20tenure

Technology:

In a Fourth of July victory for the extreme right’s campaign of disinformation, https://twitter.com/shanlonwu/status/1676302693399162892?s=20 Trump appointed judge Terry Doughty issued a preliminary injunction barring such executive branch agencies as the FBI and HHS from contacting social media companies about disinformation under the pretense of protecting the First Amendment. Revealing a outlier perspective on history, Judge Doughty wrote: “If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history,” the judge said. “The plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition.”

Doughty’s idea of protecting speech means allowing lies to go forth like the ones the Trump administration talked about Covid-19 under the ruse of claiming First Amendment Speech. The danger of such political manipulation is all too tragically demonstrated in the recent investigative reporting by the New York Times revealing that Florida Governor Ron DeSantis’ pandering to anti-vaccine advocates resulted in a higher percentage of Floridians dying than in an other state during the Covid surge from the Delta variant. Even more tragically, the reporting revealed that more Floridians died from Covid after the vaccines were made available than in comparable states. That’s the kind of “freedom of speech” extreme right-wingers like Judge Doughty want to protect to further their political power.
https://twitter.com/shanlonwu/status/1682924877315964928?s=20

Bruce Lee

July 20th marked 50 years since Bruce Lee died at the age of 32. His life affected me like it did so many others. My very first publication was about how his life had impacted me – it was in the now-defunct New York Times “About Men” column and I wrote it the first draft by hand on a few Sunday mornings at the café in the downstairs of the legendary Elliot Bay Book Company. https://www.elliottbaybook.com/ I excerpt the opening here:

“IT’S SATURDAY MORNING in Seattle, and I am driving to visit Bruce Lee’s grave. I have been in the city for only a couple of weeks and so drive two blocks past the cemetery before realizing that I’ve passed it. I double back and turn through the large wrought-iron gate, past a sign that reads: ”Open to 9 p.m. or dusk, whichever comes first. It’s a sprawling cemetery, with winding roads leading in all directions. I feel silly trying to find his grave with no guidance. I think that my search for his grave is similar to my search for Asian heroes in America….”
https://www.nytimes.com/1990/04/15/magazine/about-men-in-search-of-bruce-lee-s-grave.html?smid=url-share

Bruce Lee

July 20th marked 50 years since Bruce Lee died at the age of 32. His life affected me like it did so many others. My very first publication was about how his life had impacted me – it was in the now-defunct New York Times “About Men” column and I wrote it the first draft by hand on a few Sunday mornings at the café in the downstairs of the legendary Elliot Bay Book Company. https://www.elliottbaybook.com/ I excerpt the opening here:

“IT’S SATURDAY MORNING in Seattle, and I am driving to visit Bruce Lee’s grave. I have been in the city for only a couple of weeks and so drive two blocks past the cemetery before realizing that I’ve passed it. I double back and turn through the large wrought-iron gate, past a sign that reads: ”Open to 9 p.m. or dusk, whichever comes first. It’s a sprawling cemetery, with winding roads leading in all directions. I feel silly trying to find his grave with no guidance. I think that my search for his grave is similar to my search for Asian heroes in America….”
https://www.nytimes.com/1990/04/15/magazine/about-men-in-search-of-bruce-lee-s-grave.html?smid=url-share

Escalated Violence in Occupied Palestine:

Violence has been escalating to be more militant and deadlier which indicates a lethal shift in the occupation. Invasions in the city of Jenin, a hotbed for violence already, resulted in the rare and concerning use of military helicopters which killed six Palestinians, including a 15-year-old boy, and injured more than 90 others. Following this, 400 armed Israeli settlers led a deadly rampage through the Palestinian village of Turmus Ayya on Wednesday, killing one Palestinian and injuring 12 others. Shortly after, three Palestinians were killed in the first drone strike since 2006. https://www.reuters.com/world/middle-east/israeli-forces-strike-west-bank-city-palestinians-say-one-killed-2023-07-02/

The Titan versus Migrants – Is there an Economic Threshold for Victims?

The U.S government spent 1.2 million to locate the lost submersible Titan. A devastating loss of life, but also one that was a well-documented risk and was advertised against by the countless experts in the field. In the same week, 82 refugees died and up to 500 are still missing, after an overcrowded boat capsized miles away from Greece. Both were catastrophic, both should be mourned, but there is a clear bias in the media representation and resources between the two. There was little investigation as to how the boat got so dangerously overcrowded (human trafficking), the lives of victims (many who left for economic opportunity after their own countries were exploited by other powers, including the U.S.) or whether the Greek Coast Guard helped versus contributed to the disastrous loss of life, and there was a very low stakes effort to find survivors. If we want to assume the best, we can call it compassion fatigue, that devastation and death is taxing to empathize with, while the Titan was an opportunity to live vicariously through and hope for a happy ending. “No one cared about the several hundred people who drowned in the Mediterranean, ” said Arshad Khan, a student of political science at the University of Karachi. “But,” he added, “the United States, the United Kingdom and all the global powers are busy finding the billionaire businessman who spent billions of rupees to view the wreckage of the Titanic in the sea.” https://www.nytimes.com/2023/06/23/world/europe/titan-sub-greek-migrant-boat.html

Please do let me and the team know what topics you would like to hear more from me about – look forward to hearing your voices!

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