Monthly Archives: July 2020

This Supreme Court term belonged to John Roberts. The chief justice was in the majority in nearly every case. And he quite literally had the last word, as he wrote the opinion for the last two cases released this term, which dealt with President Trumps much sought-after financial records. The rulings were largely interpreted as a rebuke to Trump, and considering Roberts unexpectedly joined the liberals in several other cases this term, some have speculated that the conservative chief might be moving to the center.

But is Roberts actually becoming more liberal?

New data from Supreme Court researchers indicates that Roberts is firmly at the center of the court. According to this years Martin-Quinn scores, a prominent measure of the justices ideology, there is an 82 percent chance that Roberts was the median justice in the term that just wrapped. However, as the chart below shows, there is some uncertainty about where he actually falls or how much daylight exists between Robertss ideological position this term and the positions of Justices Brett Kavanaugh and Neil Gorsuch.

But moving to the center of the court does not mean Roberts is becoming a liberal or even a centrist. Yes, he joined the liberals in several high-profile cases, and according to justice pairing data analyzed by Adam Feldman for SCOTUSBlog, he aligned with Justice Elena Kagan, a liberal, more frequently than with fellow conservative Justice Clarence Thomas. But many of the cases where Roberts sided with the liberals were limited in scope or temporary in effect. Roberts also helped push forward several long-held conservative goals including dramatically expanding the definition of religious liberty as the pivotal vote in many cases.

Roberts has long been perceived as a conservative, both ideologically and temperamentally a justice who would prefer to gradually chip away at liberal precedents rather than dispatching them with one swift blow. And on an increasingly conservative Supreme Court, its not hard to see how that incrementalist sentiment combined with a fear of what would happen if the court moved too quickly out of the mainstream might lead Roberts to some unexpected places and deliver some unwelcome losses to the conservative legal movement. But that doesnt mean hes changing in any fundamental way, or that he wont continue to quietly steer the court in a conservative direction. People seem to see Roberts moving to the center of the court and assume that hes becoming more liberal, said Melissa Murray, a law professor at New York University. I would read it a different way that the court is moving to the right.

The idea that Roberts is becoming more liberal didnt come out of nowhere. Over the past few years, his ideological position on the court as measured by the Martin-Quinn scores has inched toward the center. In 2005, when he joined the court, he was basically indistinguishable ideologically from Justice Samuel Alito, who was appointed around the same time. Now, however, Alito is probably the second most conservative justice on the court, while Roberts is the fifth most conservative.

The easiest way to interpret that trend is simply to conclude that Roberts is becoming more liberal. After all, he wouldnt be the first Republican-appointed justice to move left over time. In perhaps the most dramatic example in modern Supreme Court history, a Nixon appointee, Justice Harry Blackmun, started off conservative but was the courts most liberal member by the time he retired in 1994.

Other factors could explain Robertss shift, though, starting with a limitation of the Martin-Quinn scores themselves. The scores are estimates produced by a model based on how the justices vote they are not a direct window into what the justices actually believe or whats motivating their votes. The scores also can shift as the composition of the court changes, and the court is still adjusting after the previous longtime swing justice, Anthony Kennedy, retired and was replaced in 2018 by Kavanaugh, who has so far proven to be much more reliably conservative.

[Related: The Supreme Courts Big Rulings Were Surprisingly Mainstream This Year]

Think about it this way: One justice has to be in the middle of the court. So when Kennedy retired and was replaced by a more conservative judge, someone else had to take his place in the center. In this case, that somebody was Roberts. It could be the case that Roberts is actually drifting left, said Tom Clark, a political science professor at Emory University. But it could also be an artifact of the statistical model trying to sort out what happens to the space when you add a new person. At this point, we dont know which one it is.

The model also retroactively updates justices scores for past years at the end of each term. The changes can be substantial with new justices, since the model has little data about their positions when they first join the court. Case in point: In last years Martin-Quinn data, Kennedy was deemed to be the most likely median justice in 2017 and Kavanaugh took the role in 2018, not Roberts. But with the addition of 2019 data, Roberts is now estimated to have actually been the likely median in both years. Thats partly because we now have a better understanding of how Kavanaugh tends to rule; it also reflects the a fairly high probability that Roberts was already the median justice in the 2017 term, because Kennedy hardly swung at all in his final year on the court.

[Related: John Roberts Will Probably Be The Supreme Courts Next Swing Justice]

Meanwhile, its also possible that Roberts just appears to be moving to the left because the kinds of cases that make it to the court are shifting. This effect is especially difficult to measure and the Martin-Quinn scores can only account for it in a limited way. But Clark said if the types of cases being brought before the court are changing, that could matter a lot to how liberal or conservative each justices rulings really are. Because it could be that the Trump administration and conservative legal advocates, emboldened by the solid slate of conservatives on the court, are simply pushing Roberts to move to the right faster than hes willing to go.

Take one high-profile case from this term, where the justices considered a Louisiana abortion restriction that was functionally identical to a Texas law the court had struck down in 2016. In the previous case, Kennedy who over the course of his career was ideologically unpredictable on a handful of high-salience issues, including the abortion, affirmative action and the death penalty voted with the liberals against the Texas law. This year, though, Roberts broke the tie, saying that while he still disagreed with the 2016 ruling, he felt he had to adhere to the precedent. That doesnt mean Robertss fundamental stance toward abortion changed, though. Instead, the change in the courts composition put him in a situation where institutional considerations like not wanting to overturn a recent precedent on an extremely hot-button issue four months before a presidential election may have trumped his own ideological preferences.

[Related: The Supreme Court Struck Down A Louisiana Abortion Law. Heres Where The Fight Could Head Next.]

Thats significant because in the vast majority of cases, Roberts appears to be basically as conservative as hes ever been. According to The Supreme Court Database, a clearinghouse for data about the court, the share of opinions where he voted in a conservative direction hasnt actually changed much in the past few years when Kennedys departure and the addition of Trumps more solidly conservative appointees gave Roberts an increasingly pivotal vote compared to his opinions between the 2005 and the 2017 terms. (This data is not yet available for the term that just ended.)

Share of Robertss votes that were coded as conservative, before and after the 2016 Supreme Court term

Pre-Trump includes case data for the 2005-2016 terms, while post-Trump covers the 2017 and 2018 terms. The 2016 term is counted as pre-Trump because it started before Trump was elected, but it ended in 2017. Close cases are defined as those in which the majority was four or five and the minority was three or four.

Source: The Supreme Court Database

In other words, Roberts is still very conservative. (For the record, so was Kennedy.) But several experts told us its possible that in Kennedys absence, Roberts may be increasingly willing to rule narrowly with the liberals in certain high-stakes cases. Part of his motivation is likely that as chief justice, he feels a responsibility to ensure that the court maintains its reputation as an even-handed institution.

This year was a perfect storm for a chief justice trying to keep the Supreme Court from being dragged into the muck of partisan politics, too. The country is deeply polarized, were heading into a presidential election, theres a pandemic, an economic crisis, significant social unrest, said Marin Levy, a professor at Duke Law who studies chief justices. This is a moment where its critical to someone like Roberts that the public maintain its faith in the court. And in fact, even though this terms docket was full of hot-button issues, the courts rulings were largely in step with public opinion, thanks in part to Robertss willingness to join the liberals.

[Related: Justice Kennedy Wasnt A Moderate]

So if Kennedys forays to the left were motivated by a couple of issues on which his views were more liberal than the rest of the conservative bloc, like gay rights and sometimes abortion, Robertss recent swings appear to be be driven by more strategic and even political considerations. Hes concerned about maintaining his own power and the power of the court, said Leah Litman, a professor of law at the University of Michigan. It was perhaps a sign of Robertss success that some of the biggest conservative victories this term mostly flew under the radar, such as when the conservatives continued to expand the circumstances under which religious schools can qualify for public funding, building on a case from 2017. Litman and others said that Roberts could follow a similar blueprint for eroding something like abortion rights in the future. Rather than overturning precedents outright, he might prefer to whittle away at abortion access by allowing states to pass a patchwork of restrictions, until landmark precedents on abortion eventually become functionally hollow.

Right now, of course, Roberts is still the closest thing we have to a swing justice. But hes not really a wild card especially compared to Kennedy, who was genuinely unpredictable on a handful of issues, including abortion. Clark said a better description for Roberts might be the pivotal justice, or the person with the power to broker compromises between left and right, allowing him to determine the courts direction. That moniker is especially apt given that Roberts was so frequently in the majority this term. At SCOTUSBlog, Feldman suggested calling him the anchor justice for that reason. The fact that Roberts is chief justice gives him additional power when he votes with the majority, too: He gets to assign the opinion to a specific justice, and that can do a lot to shape the breadth and impact of the final ruling.

[Related: The Supreme Court Put DACAs Fate In The Hands Of Voters]

One thing does seem clear: Roberts is now by far the most powerful person on the Supreme Court. And he is not willing at least not yet to let his fellow conservatives veer sharply to the right. But his occasional votes with the liberals shouldnt obscure the fact that hes still a very conservative justice overall. As with Kennedy, the handful of times he swings to the left may come to define his career. And this term hes certainly proved that Trump and conservative legal advocates cant expect him to rubber-stamp any argument they lay at his feet. But when he does swing, it will likely be political and institutional factors, not a shift in his ideology, that guide his vote. And that means liberals really cant rely on him to rule their way in the future.

See the rest here:

Roberts Is The New Swing Justice. That Doesnt Mean Hes Becoming More Liberal. - FiveThirtyEight

Tim Wilson provided direct assistance to the Institute of Public Affairs and solicited endorsement for his looming 2016 Liberal preselection battle while in the office of human rights commissioner, previously secret correspondence shows.

A trove of internal emails, which Wilson fought to keep from being released, shows the now Liberal MP for Goldstein used his official human rights commission email account to help arrange an international speaker for a major IPA event, organise his own attendance at functions for IPA donors, and ask for a political endorsement from someone who approached him in his capacity as human rights commissioner.

Wilson told the Guardian the emails were utterly irrelevant and a non-story, saying his support of the IPA was publicly disclosed and well known throughout his term.

But the former human rights and disability discrimination commissioner Graeme Innes said the behaviour was clearly inappropriate and threatened the independence of the commission.

The correspondence ranges across Wilsons controversial tenure at the commission from 2014 to 2016, and was released through freedom of information laws to an anonymous applicant who requested exchanges between Wilsons work email account and addresses with the domains @ipa.org.au or @liberal.org.au.

In one email in 2014, Wilson used his commission email account to contact a mystery international speaker on behalf of the IPA, renewing a request that he attend a major IPA event.

The identity of the speaker is redacted in the documents, but, in earlier correspondence, Wilson praised his achievements, compared his record of success to that of Rupert Murdoch, and suggested he could top the News Corp chairmans speech to a 2013 IPA event.

You may recall, when I was previously at the Institute of Public Affairs and extended an invitation for you to come and speak in Australia, Wilson wrote on 26 October 2014.

Since then I have left the IPA. Our (now not so) new government appointed me Australias Human Rights Commissioner. Its an interesting role, especially because I now get to prosecute libertarian values within government. Needless to say the appointment attracted a lot of controversy.

Regardless, the IPA is still keen to have you speak in Australia if you are open to doing so? They asked if I could share your email. Would that be acceptable to you?

The speaker responded the next day, asking Wilson to make the appropriate email introductions.

Thanks for the update, and, yes, I would still be interested in speaking at IPA if we can coordinate things properly. Can you make the email intros?

The documents also show that in 2016, as Wilsons tenure reached its end, he used his official human rights commissioner email account to help prepare for his bid to become the Liberal member for Goldstein.

On 9 February, he received an email from an unidentified member of either the Liberal party or the IPA, who was trying to convince him to use provisions of the Racial Discrimination Act to target aboriginal activists who were being racist towards non-Aboriginal people.

In a reply six days later, Wilson did not engage with the racism claims and informed the individual that he had resigned from the Human Rights Commission.

He then asked for quotes and a picture to include in an endorsement brochure to help with his next adventure. Wilson was at the time preparing for the Goldstein preselection battle.

If you are prepared to help me in my next adventure Id appreciate a short and flattering quote for an endorsements brochure with an electronic pic sent to [redacted], Wilson wrote, using his Human Rights Commission email account. Up to you.

Wilsons request for an endorsement was sent on 15 February 2016, the day he announced his intention to resign from the commission. His resignation was not effective until 19 February.

A lengthy endorsement was then emailed back to Wilson in reply.

If you want me to condense them, let me know, or if you would like to edit them together, please feel free, the response said.

The Guardian has obtained Wilsons endorsement brochure, which contains quotes from more than 20 individuals. It is not clear who was involved in the February 2016 email exchange.

The documents also show Wilson, while commissioner and using his official email account, agreed to attend an IPA fundraising event on 4 June 2015 .

An unidentified IPA member sent him an email requesting his attendance.

Hi Tim, the email read. Were having a lunch for IPA donors and friendly journos in Sydney on Thursday it would be great if you are able to join us. Let me know. See invitation below.

Wilson replied: Hey mate, Ill be there.

In another exchange, an email is sent by a Liberal party official to Wilsons old IPA email account, requesting his attendance as a key note speaker at a lunchtime event for the Liberal party branch at Lorne in Victoria.

Your new position creates opportunities to raise issues onto a national level, the Liberal official said.

The email was forwarded from Wilsons IPA email account to his human rights commission account, where Wilson responded by suggesting the official contact the IPA for a speaker.

Thanks for your email. As Human Rights Commissioner I am unable to come and speak at fundraisers, Wilson wrote. You may want to contact [redacted] at the Institute of Public Affairs.

The documents show Wilson also used the account to arrange attendance at a dinner for IPA donors following the launch of Peter Reiths book in Melbourne in November 2015.

Well probably also do a small dinner for donors afterwards, depending on who attends, an IPA member wrote to Wilson. Wed love to have you for that too if youre available.

Wilson replied: Sure. Done.

Innes, who was Australias disability discrimination commissioner until 2014, said the conduct was inappropriate and hurt the independence of the commission.

Innes has been critical of Wilson in the past, and was not replaced when his term ended in 2014, several months after Wilsons appointment.

It is inappropriate to use the position as a statutory officer to advance your political career because you are an officer of the Commonwealth. It is the same reason he had to resign as a commissioner before seeking endorsement, Innes told the Guardian.

It is also inappropriate to advance the causes of political organisations such as the IPA whilst in that role as it is not a function of the role nor a government or commission function.

Speaking generally, the former race discrimination commissioner Tim Soutphommasane said it would not be appropriate for someone to use the office for political activities.

It would be seriously inappropriate, if not improper, for a member of the commission to have used their statutory office for partisan activity and political campaigning, he said.

Soutphommasane, who has a background with Labor, was at the commission at the same time as Wilson.

In response to Soutphommasanes comments, Wilson said it was good I didnt then.

He said he was proud of his support for human rights and groups like the IPA, which stood up for foundational freedoms. He said his support of the IPA was no secret.

My IPA membership was consistent throughout my entire time as Australias Human Rights Commissioner (including on my official bio) and as an MP so its kind of a non-story, Wilson said.

The commissions official biography states that Wilson was previously a policy director with the IPA.

Wilson also said he had done the honourable thing by resigning before seeking preselection to protect the non-partisan standing of the office. He said he would have been entitled to stay on as commissioner, take leave, and pursue partisan preselection without resigning, something he said had been confirmed by the former Human Rights Commission president Gillian Triggs.

So this is all pretty sad: what do you want me to do? Resign again? he said.

Wilson confirmed he had gone to the information commissioner to try to prevent the release of the documents.

But he said he had done so to toy with the applicant.

I absolutely exercised all my rights under the Act to make sure the applicant thought there was something salacious in these emails only to be disappointed that they were utterly irrelevant and theyd wasted their time, and sadly that of the hard-working people at the Australian Human Rights Commission, who had to compile and redact these documents.

The Human Rights Commission declined to comment when approached.

More here:

Tim Wilson helped IPA and solicited Liberal party endorsement while in human rights position - The Guardian

Jul 19, 2020

Pressures on Prime Minister Justin Trudeau are increasing as a result of the WE scandal. Thats the ongoing controversy over a government decision made in late June to let the WE charity operate a $912-million student volunteering scheme on behalf of the government.

The Prime Minister, his wife Sophie Grgoire, and his mother Margaret have all been involved with WE, including making speaking appearances at its events. Sensing controversy, WE withdrew from the deal, and the government has been left with a lot of questions to answer.

Those are primarily being addressed by the Federal Ethics Commissioner. The House of Commons Ethics Committee has attempted to address the matter, but less successfully because Liberal Members of Parliament (MP) on the committee have filibustered its efforts during the past week.

Further issues of concern involving WE, the Trudeau family, and other members of the Liberal government have been revealed in recent days. Margaret Trudeau allegedly accepted $250,000 from WE to appear at its events. Alexandre Trudeau, the Prime Ministers brother, also allegedly accepted a lesser amount from the organization for similar reasons.

Minister of Finance Bill Morneau became part of the scandal recently when it was discovered that one of his daughters worked for WE on a contract basis, and another of his daughters had spoken at some of the organizations events.

Evidence has also surfaced that Minister of Natural Resources Seamus ORegan, who is a friend of the Prime Minister, had helped raise $400,000 for WE with Katie Telford, Trudeaus Chief of Staff.

On the surface, things dont look good politically in the Trudeau organization. However, opinion polls keep indicating that the Prime Minister and the Liberal Party would be returned to office with a strong majority in the House of Commons if an election were held now. The Liberals were reduced to a minority of seats in the October 2019 election.

There are two reasons the Liberals could be benefiting from increased popularity. The first is money. Since the COVID-19 pandemic began, they have spent a ton of it on emergency benefit payments, wage subsidies, and other programs to help Canadians get through the difficult economic situation the pandemic has caused. Bill Morneaus recent fiscal update to Parliament revealed a budget deficit of more than $400 billion and a national debt of more than $1 trillion.

Both are dubious firsts for Canada, after years of marveling at the public debts and deficits racked up by the U.S. government. Record debt and deficit aside, the government spending has been really popular and has been the defining component of the federal response to the pandemic.

Most of the difficult details of health and safety have been left to provincial and local authorities to manage. Its difficult to criticize a government that sends you a check.

The second reason is the border. During the past week, the Prime Minister confirmed that crossing between Canada and the United States will be restricted to essential traffic only. Essential means business and humanitarian reasons, not visiting friends or stocking up at Price Chopper.

Canadians have seen the stories about COVID-19 out of control in Texas and Florida but many have concluded that the entire lower 48 states are wholly consumed with COVID and chaos due to the administration in Washington, if their online comments to border-related news stories are any indication. In fact, upstate New York is no worse off than southern Ontario when it comes to COVID-19, and the situation is unlikely as severe in northern Maine or in the northern plains states either.

However, we live in a mobile society and people can, and will travel. Again, if online comments are any indication, the extended border closure has had a way of stoking Canadian nationalism and support for what the governments decision to keep the border closed. That could end up being a political dividend for Trudeau at a time when he needs one.

More here:

WE woes mount for Trudeau and Liberals, but pandemic spending and border closure could ease the trouble - North Country Public Radio

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New Delhi: Liberals are at war with each other and this is due to growing polarisation, a push for ideological conformity and the cancel culture, said ThePrints Editor-in-Chief Shekhar Gupta in episode 523 of Cut The Clutter.

Cancel culture is when someone is politically incorrect and is cancelled as a result. At this point, cancel culture goes beyond just unfollowing them and is threatening livelihoods with several people forced to resign for their diverging opinions.

Two letters have expressed concern over these trends.

The first is the strongly worded resignation letter of Bari Weiss, former editor and writer in the Opinion section of The New York Times.

Weiss accused the US newspaper of choosing stories to pander to a narrow audience due to its misjudgement about Hilary Clinton in the 2016 US Presidential Elections. Weiss said Twitter is not on the masthead of The New York Times but its become its ultimate editor that has eroded an environment for diverse opinion.

This comes just a month after the resignation of James Bennet, the former New York Times Opinion Editor, after the publishing of a controversial op-ed by Senator Tom Cotton. Senator Cotton had called for a wide-scale military crackdown on the Black Lives Matter protests in the US.

Also read: No, cancel culture isnt a threat to civilization

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The second is an open letter recently published by Harpers Magazine. It was jointly written by over 150 eminent and liberal voices including authors J.K. Rowling and Salman Rushdie, feminist critic Gloria Steinem, linguist Noam Chomsky and political scientist Fareed Zakaria.

They argued that an intolerance of public views is emerging in the US discourse, which is a threat to free speech. They also noted that cancel culture is a threat to liberalism that seeks to silence opinions and cost them their jobs.

For instance, the president and some board members of the National Book Critics Circle recently resigned amid claims of racism. This was after a colleague posted screenshots of an internal email correspondence, exposing the presidents controversial opinions on the Black Lives Matter protests.

Harvard Professor Steven Pinker, one of the signatories of the letter, called cancel culture Orwellian and said, Twitter is not an example of literate humanity.

On the other hand, critics like author Pankaj Mishra have argued that those attacking cancel culture are fighting more for their own freedom than the freedom of free speech of everybody else because they feel threatened.

However, Gupta noted, journalism and newsrooms in particular are supposed to be a large tent of diverse opinions. Expelling people from the ideological vertical for speaking out will turn journalism away from factivism and towards activism.

Global liberalism has clearly broken out into anarchy and is fighting itself, he added. This is liberal cannibalism and look whos smiling the ideological Right.

US political commentator David Rubin has described this as the liberal mob which used to attack the Right but has now turned on itself.

Watch the latest episode of CTC here:

Also read: You cant cancel Modi, RSS: Why US-style identity politics wont help Indian liberals fight

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How cancel culture has turned liberals against each other and is rocking newsrooms - ThePrint