U.S. SUPREME COURT - Students vs NCAA

"How the latest Supreme Court ruling could impact the student athlete compensation battle" PBS NewsHour 6/21/2021

Excerpt

SUMMARY:  The U.S. Supreme Court on Monday delivered a blow to the NCAA as the justices sided with former college athletes in a dispute over compensation.  While the unanimous ruling was limited to education-related benefits, like postgraduate scholarships and paying for computers or tutoring, it could add to the momentum for greater compensation for college athletes.  John Yang explores.

SUPREME COURT - On Native American Rights

"The Supreme Court’s ‘landmark decision’ on tribal sovereignty" PBS NewsHour 7/10/2020

Excerpt

SUMMARY:  On Thursday, the U.S. Supreme Court reaffirmed Native American rights to millions of acres of land in eastern Oklahoma.  The 5-4 opinion granted jurisdictional control to the Muscogee Nation and extends to four neighboring tribal nations, which together make up more than half the state.  Allison Herrera, a reporter for KOSU public radio, joins Judy Woodruff to discuss the “landmark decision.”

SUPREME COURT - Decision, Threat of Theocracy

"What new decisions say about the Supreme Court’s view of religious freedom" PBS NewsHour 7/8/2020

Another decision that supports the change of America from a Democracy to a Christian Theocracy.

Excerpt

SUMMARY:  The Supreme Court on Wednesday upheld Trump administration rules that limit birth control coverage under Obamacare -- the third time justices have considered whether some employers could opt out of that coverage based on their beliefs.  As the court wraps up its final week of the current session, Marcia Coyle of The National Law Journal joins John Yang for a closer look.

SUPREME COURT - Ruling for Vote 2020

American Voters WIN!

"Supreme Court says a state may require Presidential electors to support its popular-vote winner" by Robert Barnes, Washington Post 7/6/2020

The Supreme Court ruled unanimously Monday that a state may require Presidential electors to support the winner of its popular vote and may punish or replace those who don’t, settling a disputed issue in advance of this fall’s election.

Justice Elena Kagan wrote for the court as it considered for the first time the issue of “faithless electors” and whether the Constitution sees members of the electoral college — whose votes ultimately elect the President — as representatives of the intent of their state’s voters or as independent thinkers.

The Washington state law at issue “reflects a tradition more than two centuries old,” Kagan wrote.  “In that practice, electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.”

In an opinion that referred to both the Broadway musical “Hamilton” and the HBO sitcom “Veep,” Kagan added: “The State instructs its electors that they have no ground for reversing the vote of millions of its citizens.  That direction accords with the Constitution — as well as with the trust of a Nation that here, We the People rule.”

Lower courts had split on the issue, with one saying the Constitution envisions the electors as free to vote their consciences without fear of punishment or removal.

He tried to stop Trump in the electoral college.  A court says his ‘faithless’ ballot was legal.

It was one of the rare political cases at the court that seemed not to favor one political party over another, which might explain the unanimity.  (Justice Clarence Thomas disagreed with the majority’s reasoning but not the outcome).

Red and blue states alike urged the justices to settle the matter in advance of the “white hot” glare of November’s election.  They said they feared that a handful of independent-minded members of the electoral college would decide the next President.

The court’s decision doesn’t eliminate that possibility completely.  Not all states explicitly require conformity, and the opinion does not force them to set up such systems.  Not all scenarios are covered.  After she mentioned that the most rogue electoral votes were cast in 1872, when one of the candidates died after Election Day, Kagan wrote: “Because the situation is not before us, nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate.”

Also not before the court was an initiative by some states to pledge their electors to the winner of the national popular vote, rather than their own statewide totals.

The court considered cases from the states of Washington and Colorado.  Washington moved to fine Peter Bret Chiafalo and two others $1,000 after they voted for former Secretary of State Colin Powell when the electoral college convened after the 2016 election.  They had pledged to vote for Hillary Clinton, who won the state’s popular vote.

Colorado replaced Micheal Baca after he said he intended to vote for Ohio’s then-governor John Kasich (R) instead of Clinton, who won his state.  Baca was part of a movement to try to deny Donald Trump the presidency.

As the court’s opinion noted of the 2016 contest: “Only seven electors across the Nation cast faithless votes — the most in a century, but well short of the goal.  Candidate Trump became President Trump.”

The Washington Supreme Court ruled for the state, saying the Constitution’s directive that gives states the power to select members of the electoral college also means they can set the standards those electors must follow, such as living up to their pledge to support the state’s popular-vote winner.

Trump slams Sotomayor and Ginsburg, says they should recuse themselves from ‘Trump-related’ cases

A panel of the U.S. Court of Appeals for the 10th Circuit went the other way.  It said Colorado’s control ended with deciding how electors from the state are chosen.  From there, it said, the Constitution envisions that the 538 electors are free to vote their minds in deciding who should be President and Vice President.

All but two states have winner-take-all systems, and 32, plus the District, require those running to be electors to pledge to support the state’s winner.  Most simply expect the electors to honor the statewide result — the electors are chosen by the winning party, after all.  Only 15 have penalties for punishing or replacing electors who break their word or have a change of heart.

Still, some states worried that faithless electors could determine the outcome.  The 2000 election, for instance, was decided by five electoral votes.

Kagan acknowledged that history shows that a number of votes cast by rogue electors were counted by Congress.  But none came close to affecting the election, she wrote.

“Since the founding, electors have cast some 180 faithless votes for either President or Vice President,” she wrote.  “But that is 180 out of over 23,000.  And more than a third of the faithless votes come from 1872, when the Democratic Party’s nominee (Horace Greeley) died just after Election Day.  Putting those aside, faithless votes represent just one-half of one percent of the total.”

Kagan said both history and the “barebones” instructions in the Constitution weigh in favor of state restrictions.

The challenging electors said the Constitution’s words about “electors” voting in a ballot for President require them to have freedom of choice.

Kagan noted their argument that Alexander Hamilton, in the Federalist Papers, “praised the Constitution for entrusting the Presidency to ‘men most capable of analyzing the qualities’ needed for the office, who would make their choices ‘under circumstances favorable to deliberation.’?”

But, she wrote, “even assuming other Framers shared that outlook, it would not be enough.  Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page.”

Harvard law professor Lawrence Lessig had represented those asserting the independence of electors.

“When we launched these cases, we did it because regardless of the outcome, it was critical to resolve this question before it created a constitutional crisis,” he said in a statement.  “Obviously, we don’t believe the court has interpreted the constitution correctly.  But we are happy that we have achieved our primary objective — this uncertainty has been removed.  That is progress.”

The cases were Chiafalo v Washington and Colorado Department of State v Baca.

How the Electoral College Works

OPINION - Shields and Brooks 6/28/2019

"Shields and Brooks on Democratic debates, Supreme Court rulings" PBS NewsHour 6/28/2019

Excerpt

SUMMARY:  Syndicated columnist Mark Shields and New York Times columnist David Brooks join Judy Woodruff to discuss the week’s political news, including the first debates for 2020 Democratic candidates, whether that party has shifted too far to the left to be viable and Supreme Court decisions on partisan gerrymandering and including a citizenship question on the 2020 census.

Judy Woodruff (NewsHour):  It's been a big week for news.

Twenty Democrats took the stage for the first time, and nine Supreme Court justices finished their term, with two key cases that could reshape how our democracy functions.

Here to reflect on it all are Shields and Brooks.  That is syndicated columnist Mark Shields and New York Times columnist David Brooks, who joins us from Aspen, Colorado.

Hello to both of you.

David, I'm going to start with you.

You are — you are in Aspen, but I gather you did watch those debates over the last two nights.  Let's start by talking about the main takeaways.

David Brooks, New York Times:  Yes, I'm getting in touch with the real America out here.

You know, I think my main takeaway is how far the Democratic Party has gone to the left and how little the moderates in the debates have any interest in fighting it.

Two candidates, Warren and Sanders, said they wanted to get rid of all private health plans, employer-based health plans.  Only 13 percent of Americans agree with that.

All of the candidates of all stripes seem to think they can't get anybody to their left on immigration policy, and they're wondering very close to sort of an open borders-type approach.  And this would be, I think, devastating in the fall.

This country has 35 percent of the people who call themselves conservative, 35 percent who call themselves moderates, and 26 percent who call themselves liberals.  You can't win with 26 percent.

But this debate was entirely within that — that little parenthesis.

Judy Woodruff:  Is that what you're seeing, Mark, in this first debate?

Mark Shields, syndicated columnist:  Well, I don't see things exactly the way you do from Aspen.

But, no, I would say this, Judy.

For those Democrats for whom the highest mortal objective politically in 2020 is the retirement of Donald Trump, it's not been a good week.  The — if you think about it, the great unfinished business of Franklin Roosevelt's New Deal and Lyndon Johnson's Great Society and Harry Truman's Fair Deal and Jack Kennedy was national health insurance.

And at great political cost, the Democrats, without any help from the Republicans, with total objection and resistance, passed it in 2010, under a Democratic President, Barack Obama.  And ever since then, five consecutive elections, Republicans have run on, we're going to repeal it, going to repeal it.

As a consequence, Democrats — public by 2-1 thinks the Democrats are better on health care.  So what do the Democrats suggest?  We're going to get rid of it.  We're going to get rid of it, going to get rid of — you like private health insurance that you have and guaranteed for preexisting conditions covered under the Affordable Care Act, we're going to get rid of private insurance.

I mean, and this is a party, let's be honest, in a polarized Washington [DC], couldn't pass an adjournment motion, but they're going to pass this national health.

So I would say — I would say it was impractical, unhelpful, and flirted with open borders on immigration.  And I just — I just think the whole image coming out of that was not of a party that was responding to voters, but responding to its own interests and its own constituencies.

Judy Woodruff:  But, David, when you stack all the Democrats up, isn't it the case that most of them are saying they're not ready to throw out private insurance yet?

David Brooks:  Right.  That is true.

And I think one thing that it's worth reminding ourselves about is that most voters are new to these people.  And the instant polls after the debates are not quite what we read on Twitter.

A lot of people — and I mean a lot of the candidates saw their approval rating go up significantly, because, for Cory Booker, it's the first look for a lot of people.  And they sort of liked what they saw.

For Biden, the conventional wisdom he did so poorly, but not so much the instant polls.  He did suffer little with that Harris interchange on busing.  But people still like Joe Biden, and so he hasn't sunk himself.

I do think he [Biden] has to prove next time that he's able to go toe to toe with Donald Trump.  And if he couldn't go toe to toe with Kamala Harris on an attack that was pretty — he should have anticipated, it'll be harder to go toe to toe with Trump.

So, in some sense, his debate performance next time becomes much more crucial.

Judy Woodruff:  How did you read how Joe Biden handled last night.

Mark Shields:  Badly.  Badly.

I mean, he was unprepared.  He had to know the charge was coming, having had so much coverage for his mentioned sort of and reminiscence about Jim Eastland of Mississippi and Herman Talmadge of Georgia, his colleagues for whom he had gotten along with, and who were arch segregationists, both, and that he was unprepared for it, almost like he recoiled and it was personal.

I thought that Joe Biden stood in bad contrast, quite frankly, to Pete Buttigieg, the mayor of South Bend, who accepted responsibility.  He [Buttigieg] owned the fact that the South Bend Police Department had not — had failed to recruit African-Americans, and took that responsibility and said, it's on me.

And Biden just somehow couldn't do that.  And it was a tortured argument he made for the difference between his position in Wilmington and Kamala Harris'.

I mean, let's be very frank.  Civil rights has been a national issue in this country.  States' rights has been the resistance mantra.  And I just — I just thought Joe Biden did not — did not handle it well.

When he was asked what his principal objective would be on first day in office, he said, defeat Donald Trump.  Well, if you're going to have a first day in office, that's sort of a given.  You have defeated Donald Trump.

Judy Woodruff:  So, David, whether it was Kamala Harris or Pete Buttigieg or we — lest we forget the first night, when we had Elizabeth Warren up there with the others.

Were there candidates who significantly help themselves in these debates?

David Brooks:  Yes, I would say Warren and Harris would be the two.

What's interesting is, right now, the key fight is, who's going to be the progressive rival?  Who's going to be the progressive — the face for the progressive side of the party?  And Warren and Sanders and Harris are all vying for it.

I think Warren and Harris did particularly well.  I have always thought Harris was going to be the most formidable progressive, just because her whole life going back to when she was a prosecutor, she's just a forceful arguer.

She says, I have been an eye for an enemy, and I know how to go after them.  And that strikes me as right for the mood of a lot of progressive and a lot of Democrats.  So I think they helped themselves.

What's interesting to me is, will there be a moderate reprisal?  Amy Klobuchar from Minnesota should have come up and say, no, I don't think that our party should go there.

She should have pulled that punch.  Michael Bennet from Colorado tried to do that.  And then the final piece is Buttigieg, who seems to hover between the two camps.

And so I would say his path to the nomination, the way it looks today, is that the two camps get tired of fighting each other, and they need some sort of unity candidate, and Buttigieg could potentially be that kind of person.

Judy Woodruff:  How do you see the — whether anybody, anybody in this group helped themselves?

Mark Shields:  Judy, I would take us back to December 9, 2003, six weeks before the Iowa caucuses.

Al Gore, former vice President, who had won the popular vote against George Bush in 2000, just three years earlier, broke the political world wide open.  He endorsed Howard Dean, the Democratic chairman, former chairman, and made his nomination inevitable.  Five weeks later, it was over, was the Dean campaign.

I mean, so, this is the opening day of the season is what we're seeing.  I would say this.  I would say, collectively, for the Democrats, it was not good.

Just think of the 80 yards of the field that Republicans have surrendered to them on the abortion issue.  Republicans have been running away from what Republicans did in Alabama and Georgia and in Missouri, in Ohio.  And the President has been distancing himself even.

And what do Democrats do?  I mean, they basically just endorse abortion and throw in — well, how about trans people, covering abortion?

I just — I mean, to me, they just — wasn't thinking in terms strategically.  I mean, they owned the majority position in the country, safe, legal, rare.  And so, to me, I just don't understand the strategy.

David Brooks:  Yes.

I would say, across all issues, there's an insularity problem.  They sometimes talk as if they're campaigning for Brooklyn.  And so on a lot of issues, whether it's the economy, whether it's abortion, whether it's immigration, I don't think they're quite perceiving how a lot of people, even in Democratic House districts, are perceiving them and seeing them as something quite strange.

Judy Woodruff:  I want to ask you both about the big Supreme Court decisions that came down yesterday.

David, I'm going to come back to you on this.  You saw a divided court, two big decisions, the first one on what's called partisan gerrymandering.  It's when states draw lines based on — for partisan reasons, to hurt the other political party.  The court basically said, that's OK, that can continue.

David Brooks:  Yes, I think we're all disgusted by gerrymandering.  It's a complete manipulation of the electorate.

The question is, how do we fix it?  And I sort of think that the best way to do it is through independent commissions.  Voters in eight states so far, five in 2018, voted to create an independent commission, and to have them draw the lines.

And I, frankly, think that's a better option than letting legislators do it, who are inherently compromised, because it's political, or letting the courts do it, who have no accountability.  So I'm sort of glad that the courts decided this is not going to be a court issue.  We're not going to impose this on the country, because I think it would politicize the courts.

But it does mean everybody has to work a lot harder to try to get independent commissions in their own state.

Mark Shields:  The court found out that segregated schools were separate, but unequal, but we're not going to go near that, because it's going to be too difficult.

That's basically what the decision was yesterday.  We found out that this is unjust, it's undemocratic, it's corrupting to have this system, but we're not going to get — we're not going to dirty our own hands with it.

I agree with David in the best of all possible worlds.  It's an Iowa, Arizona approach, where you have a commission and it's fair and fairly done, and not done like it's been done in Ohio, or Maryland, or North Carolina.

But it's got to be remedied.  I mean, we're talking about a democracy that's under siege in this country and from Russia, as we have learned again.

So, to me, I just think it's — Justice Kagan was absolutely right.  It's a duty and a responsibility to act.

Judy Woodruff:  Both of these decisions very much affecting the functioning of our democracy.

Just quickly, David, less than two minutes.  Of course, the other decision had to do with the Trump administration's attempt to insert a citizenship question in the 2020 census.  The court in this case said that the Trump argument had just not — had not been one that they could buy.  So — and they sent it back and said, for now, we're going to let this go forward.

What does this say to you?

David Brooks:  Yes, the word I think the justices used was contrived.

It was a contrived argument.  They were trying to think of some way to deter immigration or not provide benefits for communities that had a lot of immigrants or maybe undocumented immigrants.  So I think there's no reason to ask this.  There's no reason to try to use the census to push people into the shadows, which is really what this is an attempt to do.

So I'm — I wish there had been a more clear ruling, but at least they did utter the elemental truth that this was a contrived reasoning, which was really an attempt to deter immigration from coming out into the open.

Judy Woodruff:  And this was a case, Mark, just quickly, where the chief justice joined with the four more liberal justices.

Mark Shields:  He did.  He did.

And it was based on a lie, I mean, Commerce saying the Justice Department wanted this to enforce the Voting Rights Act, which was a total fabrication.  It came from the Department of Commerce.  It came from the political arm of the Trump organization.

Wilbur Ross, the Secretary of Commerce, it did not originate with him intellectually, but it did politically.  So it was — it was obviously just an attempt to rob people of what is deserved, I mean, not simply representation in numbers, but so many programs, the formula is based upon need.

And if we don't even know these people, as David said, if they're in the shadows, if they don't exist, they're going to be deprived of what they are owed.

Judy Woodruff:  Both of these decisions very much worth — worth reading over the weekend, if people haven't had a chance to so far.

Mark Shields:  I agree.

Judy Woodruff:  Thank you both, Mark Shields, David Brooks.

Mark Shields:  Thank you.

U.S. SUPREME COURT - At Session's End

Another very bad decision that threatens or election system.  Gerrymandering should be un-constitutional.

"Supreme Court ends term with major rulings on census, gerrymandering" PBS NewsHour 6/27/2019

Excerpt

SUMMARY:  The Supreme Court ended its term with two major rulings that could have long-running implications for fundamental U.S. political processes.  It blocked a census citizenship question, at least for now, and declared federal courts have no role in policing partisan gerrymandering.  NPR’s Hansi Lo Wang and Stu Rothenberg of “Inside Elections” join Jeffrey Brown and National Law Journal’s Marcia Coyle.

U.S. SUPREME COURT - Memorial and Religion

COMMENT:  While I am a staunch supporter of separation of church and state, in this case the decision is correct.

"Why Supreme Court ruled removing cross memorial would be hostile to religion" PBS NewsHour 6/20/2019

Excerpt

SUMMARY:  A Maryland World War I memorial in the form of a cross will remain on public land, after the Supreme Court overturned a lower court’s ruling, 7 to 2.  What does the decision mean for hundreds of challenges pending in lower courts over religious monuments on public lands, which critics say violate the First Amendment's Establishment Clause?  John Yang talks to Scotusblog.com's Tom Goldstein.

U.S. SUPREME COURT - Indiana Abortion Law

"Why Supreme Court ruling on Ind.  abortion law reflects deep division" PBS NewsHour 5/28/2019

The slow march to theocracy, the Bible over the Constitution.

Excerpt

SUMMARY:  The legal fight over abortion rights in the U.S. took a turn at the Supreme Court Tuesday.  Justices ruled on an Indiana law stipulating how abortion providers dispose of fetal remains and prohibiting abortions performed on the basis of the gender, disability or race of the fetus.  Lisa Desjardins talks to the National Law Journal’s Marcia Coyle about what the ruling might mean.

"Planned Parenthood: ‘It’s simply not true’ Mo. abortion clinic breaks rules" PBS NewsHour 5/30/2019

Excerpt

SUMMARY:  Missouri is part of a recent wave of state laws that would ban abortion almost entirely, sometimes without exceptions for rape and incest.  The state is also making news on abortion for trying to deny its one remaining abortion provider, a Planned Parenthood clinic in St. Louis, its license on grounds of alleged violations.  William Brangham talks to Planned Parenthood’s president, Dr. Leana Wen.

"Anti-abortion group says Mo. Planned Parenthood violated patient safety" PBS NewsHour 5/30/2019

Excerpt

SUMMARY:  The national abortion debate is raging with renewed fervor, as a series of states pass restrictive laws banning almost all instances of the procedure.  Among those states is Missouri, where officials are also trying to shutter its only remaining abortion provider, a Planned Parenthood clinic in St. Louis.  William Brangham talks to Mallory Quigley of the anti-abortion group Susan B. Anthony List.

OPINION - Shields and Brooks 2/8/2019

"Shields and Brooks on Virginia turmoil, Supreme Court abortion ruling" PBS NewsHour 2/8/2019

Excerpt

SUMMARY:  Syndicated columnist Mark Shields and New York Times columnist David Brooks analyze the week in politics, including chaos at the highest levels of Virginia government, the effectiveness of congressional investigations, the Supreme Court’s abortion ruling and the legacy of Rep.  John Dingell (D-Mich).

Amna Nawaz (NewsHour):  Virginia and the country weigh the transgressions of the state's top leaders in a moment of reckoning.  And, in Washington, Democrats flex their new power in the House, starting with investigating the President, bringing us to the analysis of Shields and Brooks.

That's syndicated columnist Mark Shields and New York Times columnist David Brooks.

Welcome to you both.  Happy Friday.

So, let's start in Virginia.

I want to bring up a couple of tweets real quick, because we have had late-breaking news on this.  There has been a second allegation of assault against Lieutenant Governor Justin Fairfax, leading to former Governor Terry McAuliffe to now call for Fairfax's resignation.

He says the allegations are serious and credible and he doesn't believe Fairfax can effectively serve the people of Virginia.

I should note other lawmakers have now joined that call for him to resign.

And Fairfax has also issued a statement in response, calling the allegations an obvious — sorry — "vicious and coordinated smear campaign" orchestrated against him, and he says he will not resign.

So, Mark, start us off here.  There's a lot happening in Virginia, still.  It's still evolving.  What do you make of how it's been handled by leader there so far?

Mark Shields, syndicated columnist:  Terribly.

The late Mo Udall wisely said that, when the Democrats organize a firing squad, they first form a circle.  And I would say that's gone on.

I think each of the cases has to be treated separately.  I do think that Governor Northam — politics, to begin with, is not brain surgery.  It's about addition, and not subtraction.  It's about a party that welcomes people to its ranks, that warmly embraces newcomers and accepts converts happily and finds common ground.

A losing political party is one that spends time, energy and effort hunting down heretics and banishing them to the outer darkness because they don't subscribe totally to the received wisdom.

The Democrats in Virginia have played that second role.  They had, in Ralph Northam, a popular governor who had secured passage of Medicaid for 400,000 Virginians, something long promised, who had run against the NRA, gave them an 'F' rating, he took them on, on universal background charges, who, in the most segregated day in America, which is Sunday morning, when people go to church with people of their own race, belongs to a church with 60 percent African-Americans, with an African-American pastor.

And all of that is forgotten, all of that is tossed aside blithely because of one yearbook page which was hateful, hurtful and absolutely indefensible.

But I just — I thought the stampede on the part of national Democrats, and including Democrats as honorable as Tim Kaine, the former Governor and Senator of Virginia, to toss him out, to demand his resignation was really unacceptable.  I really did.

Amna Nawaz:  What did you make of this, David?  Did you think it was a stampede?

David Brooks, New York Times:  A bit.

Men turn out to be a problem.  There's a lot of male bad behavior.  Maybe we should have only women leading our states.  That might solve these problems.

I think there are two different cases here.  The Fairfax case, the Justin Fairfax case, is suddenly looking to be the much more serious of the two to me, that there's multiple — two women making allegations, with some suggestion that there is contemporaneous evidence, that he assaulted them.

And so that, to me, it turns out, is the most serious one to me.  I would say he's in the post peril.  He might have done an actual crime.  So, there, I think — I'm always very slow to call for resignations.  It makes everybody feel good.  But I really believe in investigating.  And so somebody should be investigating that one.

On the Northam case, you know, what he does — we spoke about it briefly, because the news had just broken last week — that what he did was appalling and hateful.

And yet I do think, in a lot of these cases, that there should be some path to redemption.  And that path should involve an apology.  It should involve a lifetime or decades or years of service in the cause.

And Northam, frankly, his record on civil rights is quite good.  And so whatever hateful thing he may or may not have done as a med student, it's not evident in his adult behavior.  And I do think that mitigates toward some sense of leniency.  Then maybe he can spend the rest of his governorship continuing good work, heightened because of what he did as a young man.

So, to me, to throw — to destroy a reasonably good career, whether you — for — over this thing is probably not — we do not have a surplus of good people in public life.

Amna Nawaz:  I wonder, though, Mark, because the Democrats rely on votes from minority voters, African-Americans in particular, in Virginia.

When you have Herring and Northam both admitting to wearing blackface, and Northam not handling it particularly well, showing very awkward conversation afterwards and admitting that, doesn't that lose them some moral high ground down the line?

Mark Shields:  Oh, sure.

I mean, and you're being excessively charitable by saying not handle it well.  I mean, he handled it terribly.

But, I mean, the attorney general turns out to be the real ace of the week by — he demanded that the governor resign for his yearbook picture, and then remembered photographic evidence of his doing something quite similar, if not identical, when he was at the University of Virginia.

And he's been far more fulsome, articulate, almost eloquent in his apology.  And so now it comes down to not the act itself.  And I agree with David.  What the lieutenant governor — the allegations against the lieutenant governor, I mean, are potentially criminal.  I mean, we're not talking about bad taste or insensitivity or racial insensitivity.

So I do think that they are very different charges.

David Brooks:  Yes.

And it should be said, when I mentioned the road to redemption…

Amna Nawaz:  Yes.

Mark Shields:  Yes.

David Brooks:  … frankly, to be honest, it's not white people who have the — who are in the position to offer forgiveness.

The African-American community is the one that was wronged by this.  And so it's trying to work with them and sort of humble oneself before them that I think is the ultimate court here.

And that would be a good role for any governor in any state to do something like that.

Mark Shields:  He had the endorsement, Northam had the endorsement of every African-American lawmaker in the state when he ran.  So it's not like he's unfamiliar with that constituency.

Amna Nawaz:  Yes.  Let's move on now to Democrats in the House.

Mark Shields:  Sure.

Amna Nawaz:  Speaking of investigations there, it's been a busy week for them, David, launching oversight investigations into the Trump Organization, threatening subpoenas.

They came out at a quite a pace.  Is it sustainable?  Are they sending a message?  What's going on here?

David Brooks:  Yes, I wonder about the word investigation.

Are we investigating, or are we having just television shows?  And Matthew Whitaker was on — was in the hearings today.  The guy is going to be out of office probably in a few days, because Bill Barr is going to be — become the actual attorney general.

So, what exactly was the purpose of that show?  And these days, when you get one of these televised hearings, they're not investigations.  They are shows.  And I'm struck by how Congress has shifted that way.

I was reading Kamala Harris' memoir last week.  And she describes her Senate career not as a series of legislations, but as a series of confrontational moments at a hearing that were televised.

And I think, for a lot of members now, that is what being in Congress is.  And so sometimes you get real investigations, but I'm dubious that we're going to see a lot of actual investigating.

Amna Nawaz:  What do you make of that, Mark?  Are they looking for answers, or are they just putting on a show?

Mark Shields:  Well, both, obviously.

I will — I will say this.  I mean, I think the Democrats won last fall because of health care, because the Republicans tried to repeal health care.  I think the Democrats ought to spend time, effort, energy trying to guarantee that coverage be available, and especially preexisting condition, which Republicans were ready to repeal.

I think they ought to be raising the minimum wage.  And they — changing people's lives for the better, but guaranteeing that Robert Mueller continues unimpeded in his investigation, and is given the resources and authority necessary to do it.

But David's right.  They can't resist the camera and the lights, and just like us.

(LAUGHTER)

Amna Nawaz:  I want to ask you about some news yesterday.

A couple of Supreme Court decisions came down, one in particular that caught a lot of people's attention.

Mark, I will start with you on it.  This was the Supreme Court basically blocking a Louisiana law that would have closed a lot of the abortion providers in that state.

And I mention it in the context of Republicans having weathered that whole storm around Brett Kavanaugh, thinking that he would make the difference in decisions like this.  John Roberts in this case was the swing vote.

Mark Shields:  John Roberts, yes.

Amna Nawaz:  What do you make of that?

Mark Shields:  Well, I mean, the Chief Justice has been time and again sort of the ballast on the court.

I don't think there's any question — and we saw it at the State of the Union address as well, Amna — that the President is going to make a abortion, and particularly late-term abortion, an issue in 2020.  He was a convert.  He was Saul on the road to Damascus in 2015 and became an ardent pro-life candidate.

He won 80 percent of the vote of white evangelicals along the way.  And, quite bluntly, late-term abortion, 1.3 percent of all abortions, is unpopular with Americans.  It is not — it's not unlike immigration.

If you think of immigration as grabbing children out of their mother's arms, then everybody in the world is on the side of the immigrant.  But if you see it as a caravan marauding toward the border, then, all of a sudden, there's a skepticism about immigration.

I think the same thing is true, quite frankly, on abortion.  And the idea of a child full-term being plucked from the womb, and then not being given life, I think it's an issue that Donald Trump, quite bluntly, wants to run on in 2020.

And he can point that he's — Kavanaugh and Gorsuch were on his side, on the side of the angels, I guess you would call them, in the decision.

U.S. SUPREME COURT - Transgender Military and Guns

"Supreme Court takes action on transgender military ban, gun case" PBS NewsHour 1/22/2019

Excerpt

SUMMARY:  The Supreme Court dealt with some of the most politically charged issues in the nation on Tuesday.  National Law Journal’s Marcia Coyle joins Judy Woodruff to discuss why the Court's removal of the injunction on banning transgender military service people was "a little surprising," as well as an upcoming gun case with broad implications for public carry of weapons.

"What serving in the military means for this transgender sailor" PBS NewsHour 1/22/2019

Excerpt

SUMMARY:  Megan Winters, a transgender sailor, says being able to transition while maintaining her Navy role left her personally and professionally “rejuvenated."  Although the military cites little evidence that the presence of transgender service members jeopardizes military readiness, the Supreme Court is allowing the Trump administration to ban them.  Nick Schifrin reports.

U.S. SUPREME COURT - Veteran's Appeal on Defense Contractors Case

"Supreme Court declines to hear case about toxic burn pits on military bases overseas" PBS NewsHour 1/16/2019

Excerpt

SUMMARY:  The Supreme Court declined to hear an appeal from veterans who had sued defense contractors over claims that toxic smoke from open burn pits in Iraq and Afghanistan caused them serious health problems.  One of the contractors, KBR, countered that waste elimination procedures were directed by the military itself.  As Hari Sreenivasan reports, the afflicted soldiers have no remaining legal recourse.

SUPREME COURT - Digital Privacy Case

aka Law Catches Up to the Digital Age

"What the Supreme Court’s cellphone location data ruling could mean for your digital privacy" PBS NewsHour 6/22/2018

Excerpt

SUMMARY:  The Supreme Court ruled on Friday that police generally need a search warrant to track a suspect's movement through cellphone records -- a limited victory for privacy advocates.  That decision stems from a string of Radio Shack robberies, and the use of data that helped lead to arrests and convictions.  Marcia Coyle of the National Law Journal joins Jeffrey Brown to discuss the case.

SUPREME COUNT - In the Fine Print

"Legal Footnote: You Have to Look Hard to See the Supreme Court Correct Its Mistakes" by Ryan Gabrielson, ProPublica 1/2/2018

When the justices err, care is taken not to call attention to the mishaps.  Some think that’s its own mistake.

Rulings by the U.S. Supreme Court often come with great anticipation and attention, even true drama.  Anxious crowds gather outside the court at dawn.  Opinions first go out on paper to the waiting hands of television news interns, who sprint the documents to correspondents to be immediately deciphered on the air.  Justices later announce their decisions in open court, and occasionally read aloud the opinions.

But when the court fixes mistakes in its opinions, it does so very quietly.  No press releases.  No public reading of corrections.  For most of the court’s history, the justices have only signaled their fixes and edits by adding the word “modified” in small type to newly issued print and digital versions of the opinions.

The changes thus have proved hard to find — not just for the general public, but for lawyers and judges and scholars of the law.

Gabe Roth, executive director of Fix the Court, an advocacy group pushing for judicial transparency, thinks that’s a problem.

“The court does what it can to obscure its mistakes and to obscure some of the finer points of what they do,” Roth said.

Most changes in opinions are minor — fixing a fact or two, not altering a constitutional determination.  But some of the changes made have been substantial.

One of the court’s most infamous rulings — Scott v.  Sanford, which in 1857 held that African Americans whose ancestors arrived as slaves could not be U.S. citizens or sue for their freedom — was heavily altered shortly after its release.  Chief Justice Roger Taney added more than a dozen pages to the Scott majority opinion, largely to defend against arguments another justice made in a furious dissent.  Taney did not show the rest of the court his rewrite before publishing the final opinion.

In 2014, Richard Lazarus, a Harvard University law professor, exposed the court’s methods for handling mistakes in a law review article.  Lazarus dove into archival files, the working papers of retired justices, and proofs of opinions to unearth the backstories for several altered opinions, including the Scott ruling.  He argued the Supreme Court should better notify the public of its revisions since the opinions are widely referenced and quoted.

“Serious practical problems arise when the version of the court’s opinion upon which lower courts, other branches of government, and scholars and teachers rely can change, without notice, as many as five years after initial publication,” Lazarus wrote.

After the article, the court took a step toward greater transparency.  Since 2015, the court’s website has flagged opinions that are modified after their initial release.  It now also posts digital copies of the decisions that highlight edits.

However, this reform applies only to recent decisions.  Finding earlier changes can be challenging, and details about the revisions — how the errors happened or were uncovered, for instance — are rarely in the documents.

This year, ProPublica fact-checked a sampling of the Supreme Court’s majority opinions from 2011 through 2015, and found several errors — including a couple of glaring inaccuracies in big decisions.  A ruling that struck down part of the Voting Rights Act featured incorrect voter registration data.  Another that helped reshape criminal sentencing relied on flawed studies claiming that judges were punishing defendants erratically.  The bad information came from legal filings, from government records and from the justices’ own independent research.

To date, the court has not corrected those errors.  ProPublica sent the court questions about its practices for revising opinions, but the court did not respond.  Chief Justice John Roberts and the other justices have repeatedly declined to comment when ProPublica provided them with our findings.  “As a matter of policy the court does not comment on its opinions, which speak for themselves,” Kathleen Arberg, spokeswoman for the court, wrote in a September email denying interview requests.

There will be little, or no, public notice if justices later fix the errant opinions.  And there is slim chance the court will ever explain its revisions.

Federal laws dictate what happens to Presidents’ and lawmakers’ work documents, which detail what government officials have done and why.  Those records often become the public’s property.

But no statute or regulation governs justices’ internal records.  Further, the court does not even have in-house policies for its files, Jill Lepore, a New Yorker magazine staff writer, reported in 2014.  The justices themselves have complete control.

“They can shred them; they can burn them; they can use them as placemats,” Lepore wrote.  “Texts vanish; e-mails are deleted.  The court has no policies or guidelines for secretaries and clerks about what to keep and what to throw away.”

The court also has not permitted much access to the minimal information it does release about changes in opinions.

In the course of his research, Lazarus sought copies of the “change pages” that mark revisions in rulings for publishers.  He obtained one year’s worth of the pages from an online service before the "Reporter of Decisions of the Supreme Court," which disseminates opinions, directed the service to stop.  The Reporter didn't respond to Lazarus’ direct requests for change pages until after his law review article published.

“My view is that they impeded my efforts,” Lazarus told ProPublica.  “The Reporter’s view is that they were agnostic.”

Justices have occasionally been more open about fixing factual errors when the mistakes became embarrassing.  But they never offer a full accounting of how the mistakes occurred, how they decided to correct them and whether they verified the rest of their facts.

In 2010, the court ruled in Graham v. Florida that juvenile crimes other than homicide cannot bring life sentences in prison without parole under the Eighth Amendment, which protects against cruel and unusual punishment.  Justice Anthony Kennedy undertook his own research in the course of writing the majority opinion.

A study of life sentences for juvenile offenders by Florida State University professors became central to the court’s decision.  It determined that such penalties were very rare.  Only 109 juveniles were serving life sentences for crimes less than homicide nationwide, the study found, of which 77 were in Florida.

The study included data from 47 states.  Lawyers for the state of Florida argued the research was not comprehensive nor independently vetted, and should not be trusted.

Kennedy sought to fill in the missing data.  The Supreme Court’s library sent letters to officials in the states that did not provide information to the Florida State professors and to the U.S. Bureau of Prisons, asking for a count of juvenile life sentences for non-homicides.  All provided information to Kennedy, and the justice added the new numbers to the earlier study’s tally.  (He also counted an Oklahoma case based solely on a newspaper report.)

In the opinion, Kennedy wrote “there are 129 juvenile non-homicide offenders serving life without parole sentences."  A few days after the ruling, the Solicitor General’s Office, lawyers representing federal agencies, notified the court that its number was inaccurate.  The prisons bureau had sent Kennedy a list of six inmates serving life inmates for juvenile crimes, but each of those convictions had involved homicide.

The justice used data he collected without double-checking it.  Kennedy edited the opinion to subtract the federal inmates from his count and include a footnote acknowledging the error.