May it Displease the Court
Lee: Welcome back everyone to another episode of May it Displease the Court
Mary: a podcast about how deeply and totally SCREWED UP the court system has always been
Lee: but especially under the Trump administration.
Mary
- I’m Mary--
- Oh and I have KIDS who may interrupt, but I hope they don’t!!!
Lee: And I’m an academic and a rhetorician, I study rhetoric, and you’ll learn more about what I do in this episode because it’s all about academia. We’re on Twitter @courtpod
In this episode we dive into a question that has been driving us nuts all season: HOW is the new Right coordinating this massive court takeover? I mean all those politicians, judges, big money donors...where is the paper trail? You’ve got 80, 5-4 Supreme Court decisions in favor of corporate interests. And that is ALL of the court cases. How are they managing to all get on the same page with absolutely NO record of meetings or conspiracies and ALL of this money exchanging hands? Here’s the theory: Coded Communication. The money--the power--communicates to the foot soldiers. By foot soldiers I mean McConnell, Trump, the Supreme Court Justices--all the people you think are at the height of power but are actually bowing to the money. And in this episode we’re gonna lay out what we think are the three cornerstones of that communication code: Signaling, Auditioning, Amicus Briefs.
Lee: okay, but why can’t they just, like, have a Zoom each week and organize what they’re going to say?
Mary: Who knows that they aren’t? But if you’re in a conspiracy, one way to not seem like a conspiracy is to not have that meeting. The conspiracy can happen just by saying “watch Fox News.” I think that the power brokers, like Koch, want this to be secret. Now, the secrecy has been blown out of the water but for 40 years Koch had the Dems being asleep at the wheel.
Essentially it’s a back channel of communication--what Trump was accused of having with Putin. Something outside of what could be monitored. So you have pundits looking at Trump saying, “he just watches cable news and does whatever they say.” But what if that’s the plan? Not that he’s just an idiot but that there is coordination here.
Look at Trump on the Bob Woodward tapes. Woodward is a Washington Post reporter who published this book Rage. Woodward was researching Trump for the book so Woodward has Trump on tape. And from the tapes, it is clear that Trump is not as big of an idiot as he comes across. He can carry on a higher level conversation than when he’s at his rallies--I also think he’s in cognitive decline but, you know, he’s not there yet--and when you listen to the Woodward tapes, Trump is MUCH more cogent.
He knows a lot more about evading taxes that I do--that requires a level of understanding beyond what gets shown in public.ALL criminal conspiracies--like the mob--are looking for plausible deniability and that’s what this coded communication is. It gives them cover that they’re not really trying to overthrow democracy. People are acting this way out of their own free will. They’re not being paid or taking orders.
Lee: Hmmm.. so it sounds like there are two things happening. The first is that what’s happening with the coded communication runs against a lot of what language experts understand about language--which is that it evolves at a community level. A basic principle of communication is that it tends to be relatively organic, like Urban Dictionary. You don’t have a lot of people pushing words from the top down. So, that leaves us unequipped to understand what’s happening here, which is like “language covert ops.”
Mary: Yes, they want this to seem organic. They want it to seem like the conservative people are the ones pushing this. As if it is grass roots when it is completely top down.
Lee: there’s a word for that; it’s called astro-turf organizing and it’s the Tea Party was (and is--let’s not pretend that 2016 isn’t a direct outcome of Tea Party stuff). Because the Tea Party fronts that it’s a populist people-led movement but it’s deeply funded and coordinated by big power.
Mary: When you read Jane Mayer’s Dark Money about the Koch foundation, you realize that Obama’s election was napalm for these people. They were absolutely outraged. Koch’s father was the founder of John Birch society. Racism in Koch foundation runs super deep. That whole network was outraged that we had a Black president. That’s what spurred this gigantic push.
Lee: I was just reading this book for an interview called Irony and Outrage by Donnegal Young, comedy and news radio over the last few years. Fox News conservative talk shows skyrocketed in profits when Obama came into power. And apparently Glenn Beck, who is of the cornerstones of this racist outrage conservative new Right raadio culture, actually went on Full Frontal with Samantha Bee--formerly of the Daily Show--a liberal comic news pundit to apologize for the horrifying role he knows he played in that period in American history that has directly led to our current cesspool.
And the second piece, beyond the way that we’re out of touch with this kind of language organization, is that most people just do NOT understand the money. The giant heaps and gobs of money driving things behind the scenes. The average person just can’t fathom it.
Mary: Absolutely. They cannot fathom this kind of money. I have been ignoring this piece of things because it’s very hard for me to wrap my head around the money. I was aware of the money but not the full picture until I listened to Senator Sheldon Whitehouse speak recently about the 80, 5-4 cases.
Lee: Whitehouse is a Dem from Rhode Island who has been fighting the good fight against captured courts. He’s a true believer--the opposite of the super corrupt--like a righteous zealot but for democracy. His family were in the secret service so he’s basically a spy for justice.
Mary: His work has been the best on this. Whitehouse splits all 80 of the pro-corporate Supreme Court cases into four groups:
- voting and democracy,
- undermining the civil jury,
- unlimited dark money spending in politics,
- weakening regulatory agencies
Here’s Whitehouse: 20:32-21:30 (80 5-4 cases that have these characteristics (1) 5-4 Roberts 5, identifiable republican donor interest in case and in every case that donor interest won)
But they don’t want a paper trail on this, they don’t want records of meetings or coordination. Leonard Leo and his network take great pains to keep the identities of their donors secret. Leonard Leo, again, is the brainchild behind Trump’s Supreme Court nominees list and listed as the co-chairman of the Federalist Society.
FYI, Leo was just found spearheading a dark money corporation worth $80 million.
Mary: Why do they work so hard to stay anonymous? Donors fear the public criticism, plain and simple. They know that they or their companies will face repercussions for funding unpopular and self-serving positions, like gutting environmental protections or slamming the courthouse door on workers and consumers. Others seek to cover up blatant conflicts of interest.
So if they can’t do it explicitly and can’t risk a paper trail, how is this new Right network achieving this miraculous, unanimous set of 5-4 decisions? Coded Communication: Signaling, Auditioning, Amicus Briefs.
Mary: Here’s the theory. I just want to put it out there that they could easily be directly communicating with these people and telling them what to do as well. I have no idea whether they are or they aren’t. But I do think they are using Fox News and conservative media to get messages out. It would be just as easy for Koch to call up Rupert Murdoch and feed the system that way. Then they write a story or do a piece and there you go.
Lee: the other benefit of that is the voter/public buy in. If you’re behind closed doors trying to re-engineer the way people think about very popular concepts then you can't just suddenly introduce new meanings and uses and have buy in. If it’s being distributed to the foot soldiers as it is being distributed to the plebs then you’ve got maximum efficacy.Mary: true. And this is the point. Vox wrote an article about conservatives buying up local media, Sinclair media buying up local stations, hitting another station. It used to be that you trusted your local reporters but now they’re required to read these pieces nationwide. They’re co-opting your local homegrown newscaster to spew out this nationalized conservative propaganda. And they’re buying up these dying newspapers and doing the same thing.
Lee: It comes back to this thing we’ve been saying all along which is that the public conception of how the media, how courts, how political language works is so disconnected from what’s actually happening and it’s benefiting the Republicans because they get all of the benefits of localism and fascism.
Mary: some brilliant evil shit
Lee: Let’s get to the nitty gritty about how this works in practice. Signaling, Auditioning, Amicus Briefs. Take it away Mary.
SIGNALING
Mary: Signaling kind of comes first if you need somewhere to start. We all consume media whether it’s coming out of Fox News in kind of a “oh my god can you believe what they said?” or if you’re actually listening. And signaling is kind of the coordination of how different terms and language--such as liberty or courage from our previous episode--are getting redistributed and re-coded to coordinate the efforts of the GOP.
I have listened to pundits talk about Trump and they talk about him like he’s some, oh he’s just some grandpa who sits there and watches Fox News. And then when he talks they say, “he just heard that on television” because apparently he watches an obscene amount of TV for the leader of the free world. Portrayed as a dolt, dummy, just regurgitating talking points coming from Fox News. But what do we know? Right wing media is highly coordinated. They come out with a story and it is all over the place: Tucker, Hannity, Maria Barthiofdsa...all over the place. As soon as that episode comes out, they are ALL on that point, all saying the same thing.
I think to myself, obviously that level of coordination is coming from a central hub. There’s no possible way that all of these shows have all of the same message if it isn’t centralized. And who runs Fox? The Murdochs. Media oligarchs. Deep in with all of this right- wing Koch money. Same network of money. I don’t think it is far fetched to think that the president is listening intentionally to get all of this information. The oligarchs are speaking directly to him AND to the people they are trying to influence.
Nobody is writing on it. Nobody is reporting on it. They don’t have a source. What I would love is to know whether or not this is happening. But then they would need a whistleblower. It’s useful to think about the fact that when you’re listening to a highly coordinated media outlet that what Trump is doing isn’t just doing “old man” stuff. We have a highly coordinated top down conspiracy and it isn’t helpful to think of him as a blithering idiot because he doesn’t know any better. I don’t think it’s true or helpful.
AUDITIONING
Mary: Now auditioning is related but different. If signaling is how the media coordinates the money and the politicians, then auditioning is how conservative lawyers and judges signal back to the money--how they say “hey dark money I’ll sell out democracy for you” but without the paper trail.
Then, auditioning is the way that the judges are signaling to the money “pick me, I'm going to be on your team.” It is very much like trying to rush a sorority.
Lee: fraternity, let’s be real
Mary. Ha. yes. The judges are using the coded communication, writing decisions or dissents that say, “i’m for your issues, I don’t care how big of a jackass I make of myself. I don’t even care if this issue is relevant. I’m just going to let you know in my opinion that you can count on me.” Whata I’m dying to know is whether thse people are just stupid or whether they’re bought off. I’m dying to know that but unfortunately there’s no mechanism to monitor that. Because judges are not monitored in that way.
Lee: Back in July on Twitter, Whitehouse wrote that an “appellate judge” had told Whitehouse that quote: “he now sees judges ‘auditioning’...writing decisions not on facts and law, not to do justice among parties, but to signal their availability and reliability. Kavanaugh was an auditioning champion,” concludes Whitehouse, “look where he got.”
Mary: WHO'S PAYING YOUR BILLS, KAVANAUGH? WHO BOUGHT YOUR HOUSE? WE KNOW YOUR SALARY. HOW ARE YOU LIVING LARGE?
Judges shouldn’t be living large. If you want to live large, get off the bench, go into private practice. It’s very easy to sell your soul as an attorney. You don’t need to do it on the bench.
Auditioning is writing decisions not on facts on law, a decision written so that whatever side the Republican donor wants will win and it doesn’t matter what the facts of the case are or what the law states. They just write something saying why they’ve won and why.
Lee: For example, Amy Coney Barrett has repeatedly signaled in her grossly short for a Supreme Court Justice appointee career how willing she is to fuck over ethics and democracy in favor of corporatae interests. On Oct. 16, Salon reported that, while an appellate court judge, Barrett voted to overturn a district court ruling that found a county in Wisconsin--quote--“liable for millions in damages to a woman who alleged she had been repeatedly raped by a jail guard.”
Here’s a direct quote from Kyle Herrig, president of the watchdog group Accountable:
"After a 19-year old pregnant prison inmate was repeatedly raped by a prison guard, Amy Coney Barrett ruled that the county responsible for the prison could not be held liable because the sexual assaults fell outside of the guard's official duties. Her judgment demonstrates a level of unconscionable cruelty that has no place on the high court."
Mary: it’s so upsetting. There is no recourse. And where is the crime, exactly, in someone’s job description? If that’s not actual. Then nothing is actual. And you can create circumstances that ALLOW for something like that to happen. Which is what they did.
Mary: And then there’s Gorsuch’s Ice Road Trucker case.
Lee: Gorsuch--as in “gor-such-an-asshole”
Mary: lol. This trucker was driving and had to pull over because the roads were super unsafe and his truck couldn’t move. It was so cold that his choice was either to abandon the truck or die. So he abandoned the truck. But he did go back for it later.
The company fired him anyway. So, essentially, it was like, my choice was getting fired or die, like, come on.
Gorsich was like, “you would have had to die to keep your job.” Strict, literal interpretation of the law. Didn’t care about these extreme facts. Seen as a positive for him.
It’s an audition because what the Republican donors are worried about is that you’re going to get on the bench and be a human being--to be compassionate that this man has to choose between life and work, an impossible choice. You have to choose life. Because you’d be dead and wouldn’t have a job anyway.
Mary: The fact that Gorsich was all “he’s shit out of luck I guess,” there is no circumstance he could be sympathetic to this guy. What more extreme circumstances could there be? Even in that situation Gorsich is sticking strong to pro-company, pro-corporate.
Those are the two extremes; okay, you have to die for corporate America and corporate America can literally rape you. That’s what Gorsuch and Coney Barrett are saying.
That’s what these donors want. They want someone who, in the face of public pressure, there will be no fact pattern that will awaken their human compassion. They want corporate robots who are just going to rule for them no matter what.
You don’t need back channels for this shit. You just put it on the news. You’re not just signaling to the president; you’re signaling to the base at the same time.
Mary: So you might not like the left but they’re the only ones who are going to give a shit about your rights
Lee: Vote Biden!
AMICUS BRIEF
Mary: Now, once judges are on the team, there needs to be a mechanism for the donors to tell the judges what they want. This is payback, baby! You wanted on the team. Now you pay us back.
The payback is 80 5-4 decisions and counting. We have a Supreme Court term where there is a LOT on the line.
What Sheldon Whitehouse and a few reporters have figured out is that dark money funds the plaintiffs to put forward the cases that the courts will decide on. They are choosing and paying for the plaintiffs, which is very expensive. The dark money then fund what Whitehouse calls “a chorus of Amicae,” which are a bunch of Amicus Briefs.
Here’s Whitehouse again: 16:51-17:13 (nutshell outline of how dark money is used to create and fund lawsuits, write amici to influence Judges)
Now Amicus briefs are supposed to be friends of the court.
You take the fact patterns, write out the facts in a way you find most persuasive--don’t know if they're telling the truth but you’re supposed to--then craft a legal argument. This is what’s persuasive. These are the facts. Then make a legal argument in the way the case should be decided.
I worked for an Agency that represented child protective services and there was litigation in New York about whether parents after their parental rights are terminated whether they would still have contact with their kids if the judge gave them permission. Lots of complicated reasons for and against giving kids contact with parents when the parent needs rights terminated. I worked for the government representing CPS and they wrote a friend of the court, Amicus, brief about why this wouldn’t help the kid or the adoptive parent. So CPS isn’t part of the case but they represent the kids, they will be affected by the outcome--that's the point of a friend of the court brief--a legitimate one anyway.
So all of these dark money groups are claiming to have a “stake” in these cases but they are funded by the same pool of pro-corporate donor money. A variety of groups are being paid to write these briefs all arguing on the same side. Incestuous. No mechanism to disclose it to the judges, if it even matters given that many of these conservaative judges are going to the Federalist Society, speaking at events, etc. They have to be aware of what legal theories are being pushed forward by the donor class funding all of this.
Amicus are important because the dark money is funding the think tanks to write these briefs and then the judges can just adopt that reasoning. They don’t have to do any work if they don’t want to. This is just how the money wants me to look at the facts and get the results that the money wants me to get to. Which is really convenient when you’re installing judges that have no experience in a particular area, weren’t trial attorneys so they don’t understand litigation, they aren’t knowledgeable, they’ve been deemed unqualified--but who cares, if they’re saying they’ll do whatever dark money wants them to do and also they are being HANDED the legal argument by which to do it.
Amicus is supposed to be “friend of the courts.” It’s supposed to be a good thing, a helpful thing but it has been co-opted, perverted by dark money.
Lee: The Senate Democrats, spearheaded by Whitehouse, found that the US Chamber of Commerce has filed at least 448 amicus briefs in the Supreme Court since John Roberts became Chief Justice in 2005. With a 70% win rate.
Mary: “US Chamber of Commerce”--WE DON’T KNOW WHO THAT IS--BUSINESSES CAN HIDE BEHIND THAT. At the very least they’re a pro-corporate trade group. They are also the largest lobbying organization in the United States, spending nearly one-and-a-half billion on lobbying the federal government over the last two decades. And they campaigned voraciously to get Kavanaugh to the Supreme Court.
And then there’s the American Legislative Exchange Council--ALEC--which doesn’t do anything else except write legislation to circulate to the conservative media. They are Koch funded
Example of an Amicus Brief: the new Alito opinion for one of the cases
5:4 he basically just wrote what the amicus brief was--he just used it as his rationale
It was the DOJ. Mary has seen this more than once recently
Alito just used the DOJ argument. That’s not a crazy thing for Amicus brief to have an effect but they’re using this as signaling for this groupthink
Hernandez v. Mesa - Border Patrol agent shot a 15 yr old Mexican boy across the border in the face killing him for at worst throwing rocks or just running up and tagging the border and running back - aka murder either way. Legal question is can his family sue the Federal agent for violating the Constitution - conservative majority say, nope bc the boy was in Mexico, everyone agrees that if he had been standing a few feet closer in the US the boys family could sue. Dissent says the agent was in the US, behaving outside the Constitution so family should be able to sue.
“Conservatives use formalistic reasoning as a way to pretend they are being neutral by pretending that the framework that they are using is neutral and you are expected to believe that the fact that they land on politically conservative outcomes nearly every time is just a coincidence.”
Alito is politics first, ideology forward, whereas Roberts can step back and make strategic choices to achieve his ends. Alito doesn’t hide the ball; he acknowledges that he doesn’t need to make the opinion sound more neutral because they have the majority.
How conservatives view rights v. how liberals view rights
Liberals don’t view rights without remedies as rights whereas conservatives view rights as conceptual, ethereal, god-given in many cases, and not necessarily tied to remedies. If a right is violated and there is no remedy - just an unfortunate technicality.
“Legal formalism is a set of rules that exist separate and apart from the people it impacts and the people whose lives it controls.”
5-4 Podcast plug
Prof. Steve Valdeck who argued the case said the officer was represented by a private attorney (who gave one of the worst advocacy performances in Sup Ct history) and the US Government rep’d by the DOJ joined the case as a “friend of the court” Alito in his decision didn’t really rely on the arguments made by the agent, he relied and parrotted the arguments made by the Feds in the amicus briefs, as friends of the court BOOM!
The challenge to fighting this stealth plan is that it requires a lot of explanation and attention and resources
They’re banking on the electorate not having any energy
They’re also banking on Leftist academics being uncoordinated
Lee: spoiler alert--we aaarreeeeeee
Mary: That’s the difficulty. From a philosophical standpoint, it’s like, so what? They’re coordinated. They’re networked. Is there anything unconstitutional about that?
The answer would be no, if they weren’t accurately trying to suppress everyone on the other side who are trying to exercise their right to vote and to effect how they are governed.
It’s not an on the level exchange of ideas. If it were, then you would be okay with democracy and the majority rules. But they’re not okay with majority rules. They’re not okay with putting their ideas into the marketplace and seeing how they wash out.
The dark money donors feel aggrieved by any demand made by the people (ie paying taxes) with zero acknowledgement of what the people have given them and what they have taken from the people
Perhaps we could bring attorney grievances to state licensing boards seeking to get these Judges doing Repub donor bidding out of the profession. Also Sen Whitehouse doesn’t go far enough. We need laws to look at Judges finances and give mandatory disclosure requirements for Judges and close associates. We don’t want gifts flowing to them through family members.
People are talking about court reforms and rebalancing the courts by increasing the number of Judges at all Federal levels.
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