Yesterday Ron Brownstein wrote that “The struggle over the sweeping red-state drive to roll back civil rights and liberties has primarily moved to the courts. Since 2021, Republican-controlled states have passed a swarm of laws to restrict voting rights, increase penalties for public protest, impose new restrictions on transgender youth, ban books, and limit what teachers, college professors, and employers can say about race, gender, and sexual orientation. Some states are even exploring options to potentially prosecute people who help women travel out of state to obtain an abortion. In the early legal skirmishing over this agenda, opponents including the federal Justice Department have won a surprising number of decisions, mostly in federal courts, blocking states from implementing the new laws.”
I wish the story ended there. The problem is that these decisions have been appealed by right-wing politicians and are headed towards an illegitimate Supreme Court shaped with 3 appointments by an illegitimate occupant of the White House. That court’s right-wing majority, wrote Brownstein, has generally ruled in ways that favor the conservative social-policy priorities reflected in the red-state actions.”
In the coming years, the Court will face a series of decisions on the new red-state agenda that may determine whether the U.S. maintains a strong baseline of civil rights available in all states or reverts back toward a pre-1960s world where people’s rights varied much more depending on where they lived.
…Since President Joe Biden’s election, the 22 states where Republicans hold unified control of the governorship and the state legislature have moved with remarkable speed to create a two-tier system on issues including abortion, classroom censorship, and the treatment of LGBTQ people. “The fact that all of this is happening on so many different fronts simultaneously is unprecedented,” Donald Kettl, a former dean and professor emeritus of the University of Maryland’s School of Public Policy, told me.
This broad red-state push to retrench rights, as I’ve written, is reversing the general trend since the 1960s of nationalizing more rights, a process often called “the rights revolution.”
Civil-rights advocates have limited options for reversing this tide of red-state legislation. So long as the Senate filibuster exists, Democrats have virtually no chance of passing national legislation to override the red-state actions on issues such as abortion and voting rights, even if the party regains unified control of the federal government after the 2024 elections.
In some states, opponents can try to rescind these measures directly through ballot initiatives, like the Ohio referendum that, if passed in November, would overturn the state’s six-week abortion ban. But not all states permit such referendums, and even in those that do, ballot measures to reverse many of the key red-state restrictions would face an uncertain fate given the underlying conservative lean of their electorates.
…Over recent years, the [Supreme] Court has restricted the ability of blue states to impinge on rights that conservatives prize while mostly allowing red states to constrain rights that liberals prioritize. The Court has displayed the former instinct in its rulings striking down gun-control laws in blue jurisdictions, allowing religious-freedom exemptions to state civil-rights statutes, and barring public universities from using affirmative action. Conversely, the Court has loosened restrictions on red states with the Dobbs decision and the 2013 Shelby County ruling effectively revoking the Justice Department’s authority to preemptively block changes in state voting laws.
…The one point both sides can agree on is that the Supreme Court’s rulings on the red-state measures will represent a crossroads for the country. One path preserves the broadly consistent floor of civil rights across state lines that Americans have known since the 1960s; the other leads to a widening divergence reminiscent of earlier periods of intense separation among the states.
Kettl believes that if the Supreme Court doesn’t constrain the red states, they almost certainly will push much further in undoing the rights revolution. “We haven’t seen what the boundary of that effort will be yet,” he told me, pointing to the ordinances some Texas localities have passed attempting to bar women from driving through them to obtain an abortion out of state.
If the Supreme Court allows the red states a largely free hand to continue devising their own system of civil rights and liberties, Chemerinsky said, it will present Americans with a “profound” question:
“Will the country accept being two different countries with regard to so many of these important things, as it did with regard to other important things such as slavery and civil rights?” he said. “Or will there be a point that people will say, ‘What divides us as a country is much greater than what unites us.’ And will we start hearing the first serious calls to rethink the United States?”
The court system is not highly regarded by the general public right now to begin with— and trust and esteem for the Supreme Court, particularly, has plummeted since the Clarence Thomas scandals have been revealed. And now, with the GOP following Trump’s orders to discredit prosecutors, experts worry about judicial independence. Jacqueline Alemany reported that "the operating thesis of the GOP’s playbook to counter the myriad criminal investigations into Trump," is to discredit institutions involved with Justice on every level. “The strategy has been effective in shaping public opinion of the investigations after years of sustained broadsides against the judicial system by Trump and his top allies. An Ipsos poll last month showed 75 percent of potential Republican primary voters said charges against the former president across various investigations were politically motivated.”
The GOP tactics “threatens to degrade an important precedent that protects prosecutorial independence and the ability to fairly root out wrongdoing without partisan influence or gain, according to legal experts.” GOP extremists have launched phony investigations to harass Manhattan District Attorney Alvin Bragg, special counsel Jack Smith, and most recently, Fulton County, Ga., District Attorney Fani Willis— all of whom have charged Trump with crimes. And state lawmakers have begun discussions to remove Willis from her seat through a disciplinary commission in Georgia— one of several states that have recently adopted laws aimed at reining in the power of locally elected prosecutors.”
…“Whomever is the accused deserves an adjudication which is, as much as possible, the application of law to facts, and you do everything you can to shield that inquiry from the rough-and-tumble of constituent politics,” said Robert Raben, the former Assistant Attorney General for the Office of Legislative Affairs under President Bill Clinton. “There are important lines of division that should not be penetrated— and we can squabble about where those lines are— but hauling up an investigator while something is pending to influence something to which you are not a party is inappropriate,” he added. Raben is the author of what is known as the “Linder Letter”— one of the most commonly referenced distillations of the guardrails needed between the branches of government to prevent disclosures that could compromise national security, criminal investigations, prosecutions or civil cases, and individual privacy. Written in 2000 and addressed to former congressman John Linder (R-GA), the chairman of the Subcommittee on Rules and Organization of the House, at the beginning of a new Congress during a presidential election year, the letter was sent in advance of an “avalanche of politically tinged investigations” from the GOP-controlled Congress, according to Raben.
It is regularly cited as the basis of the Department of Justice’s long-standing refusal to comply with information requests related to ongoing investigations. The letter was referenced by Carlos Uriarte, the assistant Attorney General for the Office of Legislative Affairs under Biden, in his inaugural correspondence with the Republican-led House Judiciary Committee, in which he reiterated the department’s practice of not providing information about ongoing investigations.
Raben’s letter was not the first to explicitly lay out reasons such a firewall is required to protect the integrity of criminal investigations and individual privacy. In 1940, Attorney General Robert H. Jackson, under President Franklin D. Roosevelt, informed Congress that “all investigative reports are confidential documents of the executive department of the Government … and that congressional or public access to them would not be in the public interest.” Jackson’s opinion referenced previous conclusions by his predecessors dating back to the turn of the 20th century.
…Trump’s salvos against prosecutors and the Justice Department have come at a cost: The Post previously reported that the U.S. government spent nearly $2 million for U.S. Marshals to provide security to Smith and other officials between November 2022 and March 2023. Security measures have been bolstered for several other officials involved in the proceedings around Trump’s criminal charges.
Some House Republicans have recently rallied around ideas to prohibit the use of federal funding to pay for Smith’s investigation. Rep. Matt Gaetz (R-FL) introduced a bill in July proposing that “no funds authorized or appropriated by federal law and none of the funds in any trust fund to which funds are authorized or appropriated by Federal law, shall be expended for the special counsel’s office.” Some Georgia lawmakers have also pushed to defund Willis— a move that Georgia’s House Speaker Jon Burns (R) called an “attempt to interfere with the criminal justice system” and “harmful to public safety.”