A gun rights group warned the Supreme Court in late October that upholding Texas’ so-called vigilante antiabortion law would have grave consequences for other constitutionally protected activities.
“The most useful way to appreciate the significance of this case is to stop thinking of it as an abortion case and recognize it for what it is,” wrote Erik Jaffe, a Washington, D.C., lawyer for the Firearms Policy Coalition — a vehicle for “deterring the exercise of any and all rights.”
The Supreme Court failed to heed the warning, which came from both the right and the left, and decided 5 to 4 this month to let stand a law that will make obtaining abortions in Texas impossible for most women and that was crafted to prevent abortion rights advocates from obtaining an injunction to block it.
Now political leaders in other states are backing similar legal schemes, not all of them targeting abortion.
The Texas law allows citizens to sue abortion providers and anyone who helps a woman to obtain an abortion after five or six weeks of pregnancy, when many women may not even know of their condition. Successful plaintiffs receive at least $10,000 if they prevail, and the defendants must pay for their legal costs. Abortion providers have no way to block the law in court and cannot recover attorneys fees even if the suit was clearly frivolous.
Gov. Gavin Newsom retaliated days after after the Supreme Court’s ruling, announcing he would lead passage of a California law modeled after the Texas statute but targeted at the gun industry. Newsom’s proposal would allow citizens to sue to stop the sale, distribution and manufacture of assault weapons and ghost guns.
Some legal experts described Newsom’s action as a politically motivated stunt to rally his base before his next election. Others said he was attempting to show “the hypocrisy of the Supreme Court,” which now has an activist right-leaning majority that favors gun rights and opposes abortion.
“As much as you hate abortion or as much as you hate guns, welcome to the world where you get to screw with constitutional rights,” Jaffe said in an interview.
Florida Gov. Ron DeSantis, attempting to portray himself as a conservative populist vengeful of the “elites,” followed Newsom and proposed a law similar to Texas’ last Wednesday aimed at public school instruction. It would give parents a financial incentive to sue schools if teachers appear to be instructing students on critical race theory, an academic framework that analyzes how many legal principles as well as government and business actions stem from racism.
Jaffe said laws like the Texas statute should be condemned by both the right and the left, regardless of the topic targeted. He compared the situation to the American Civil Liberties Union defending the right of neo-Nazis to march in Skokie, Ill., in 1978 because even speech one abhors should be protected.
UCLA law professor Jon D. Michaels, one of several scholars who joined a Supreme Court amicus brief against the Texas law, agreed only to an extent.
A divided Supreme Court refused Friday to block a Texas law that has banned most abortions in the state.
In a perfect world, he said, the Supreme Court would have struck down the abortion law and foreclosed copycats. “We shouldn’t have individual states picking and choosing which constitutional rights they are going to respect and which they are going to turn into target practice,” he said.
On the other hand, “I don’t think it is fair for one side to play differently than the other.” He described Newsom’s proposal as narrow. Assault weapons are not constitutionally protected and already are outlawed in California. If the Supreme Court grants them constitutional protection, a state gun law could then be used to try to enforce a ban.
Newsom’s proposal, Michaels said, amounted to “a progressive counterstrike” to the Supreme Court ruling. “I don’t think one side should unilaterally disarm,” he said.
Stanford law professor John Donohue, who has served as an expert witness for California in gun litigation, said Newsom’s ploy was “probably good” because it might make courts “rethink” their handling of laws like Texas’.
“Tit for tat may be the most effective way to bring the other side back in line,” Donohue said.
In an op-ed Monday in the Washington Post, Newsom said that was his hope.
“Maybe California’s move will lead the court to change its mind about allowing Texas’s bounty-hunter scheme,” Newsom wrote. “If that’s the case, women’s reproductive care across our nation would be better off.”
Not all the new proposals modeled after the Texas law are aimed at constitutional rights, but they allow citizens to collect a “bounty” if they win their lawsuits.
Michaels noted that a bill has been introduced in Illinois to allow citizen lawsuits against people who show false documents to pretend they have been vaccinated against the coronavirus. He said he could foresee a blue state trying to enforce campaign contribution limits by authorizing citizen lawsuits.
These proposed “laws are fundamentally different from any legal regime we are accustomed to,” he said.
Usually, he said, a person can sue only if he or she has been injured. The Texas law allows anyone to bring the suits. It amounts to “legal vigilantism because it is hard to fend off these lawsuits,” Michaels said.
Newsom’s proposal would permit private citizens who win the gun suits to receive at least $10,000 for each violation and court costs and attorneys fees. The U.S. 9th Circuit Court of Appeals is now weighing the constitutionality of the state’s assault weapons ban.
Appeals court upholds California’s ban on large-capacity gun magazines, saying it does not significantly interfere with the right to self-defense.
Jaffe questioned whether Newsom’s proposal, depending on how any future legislation is written, would have a practical effect. Gun businesses in California are already complying with California law, he said.
“If he really wanted to follow Texas down the path, what he would do is ban all guns or the sale of any gun and any ammunition period,” Jaffe said.
Chuck Michel, a lawyer and president of the California Rifle & Pistol Assn., said the gun industry would challenge any California law that further restricted gun rights. The high court’s Texas ruling, he said, should not be read to give states “carte blanche” to follow in Texas’ footsteps.
“Otherwise every red state will go after the civil rights they don’t like, and every blue state will go after the civil rights they don’t like,” Michel said. “That is going to lead to games that no one will like.”
Newsom wrote that he agreed such bounty laws should be stopped.
“But if only radical conservative interests follow Texas’s playbook,” he wrote, “we’ll never see change.”
Original Post: latimes.com
News Analysis: Biden, in Blasting Trump, Concedes the Nation Has yet to Heal
For the better part of the last year, President Biden has sought to ignore his predecessor as he has tried to deliver on a campaign promise to return the country to some semblance of political normalcy.
But in a passionate speech at the U.S. Capitol on Thursday marking the one-year anniversary of the bloody insurrection, Biden essentially conceded he could not reconstruct a world before Donald Trump’s tenure, nor could he deliver on his promise of protecting democracy without calling out the former president’srole in lying about the 2020 election results and inciting the mob that stormed the Capitol.
“For the first time in our history, a president had not just lost an election. He tried to prevent the peaceful transfer of power as a violent mob reached the Capitol,” Biden said from Statutory Hall, a historic chamber in a Capitol building that Biden, a former senator, reveres.
Biden avoided using Trump’s name, following a practice he has tried to abide since taking office on Jan. 20. But it hardly mattered. Like a prosecutor delivering a closing argument, the president methodically detailed Trump’s conduct as the slow-motion riot accelerated. He described how Trump lit the fuse and watched it on television from the White House, “doing nothing, for hours” to stop it.
In concluding his case, Biden hit hard at Trump’s motive:
“His bruised ego matters more to him than our democracy or our Constitution,” Biden said. “He can’t accept he lost.”
Visual coverage from remembrance events throughout the day marking the anniversary
This was not a commemoration filled with calls for unity or a return to normalcy as much as it was a plea for Americans to accept the truth of what happened a year ago. There was no attempt to say the nation had healed and has come together with common purpose or belief.
On the contrary, Biden spent much of the address debunking Trump’s claims of a rigged election, point-by-point, asking why many of the Republicans who have supported the former president’s fraud claims have not disputed their own victories, on the same ballots.
Few thought such a speech would be necessary a year after a pro-Trump mob stormed the Capitol, inflicted injuries on more than 100 police officers, contributed to the deaths of five people and forced the evacuation of lawmakers from the complex. Biden certainly hadn’t anticipated needing to make such an address. He pitched his candidacy on the idea that he was a seasoned hand who had worked across the aisle, one of the grown-ups in the room. The nation, he believed, could snap back from a twice-impeached president who smashed norms and challenged bedrock institutions.
“The thing that will fundamentally change things is with Donald Trump out of the White House,” Biden said in his first 2019 campaign visit to New Hampshire. “You will see an epiphany occur among many of my Republican friends.”
On the night he was declared winner of the election, Biden still believed healing would come.
“It’s time to put away the harsh rhetoric, to lower the temperature, to see each other again, to listen to each other again. To make progress, we must stop treating our opponents as our enemy,” he said.
But many elected Republicans and conservative media figures — even those who once agreed Biden had won the election or who texted Trump begging him to stop the insurrection — have since paid Trump homage at his Florida home. They have amplified his false rhetoric. The lies have taken hold on the rank-and-file in the party: 3 in 4Republican voters in a recent National Public Radio poll agree with Trump that there were “real cases of fraud that changed the results.”
The closest Biden came to reaching across the aisle on Thursday was an offer to work with Republicans who accepted the election and a concession that “some courageous men and women in the Republican Party are standing against” the lies. But even then he went only so far, quickly pivoting back to his harsher argument: “Too many others are transforming that party into something else.”
Biden seemed to understand that his words were unlikely to win him Republican converts and the risk of further politicizing the event. Sen. Lindsey Graham of South Carolina, a close Trump ally, acknowledged in a statement Thursday that Jan. 6 that he “cannot believe that a mob was able to take over the United States Capitol during such a pivotal moment — certifying a presidential election.” He then blasted Biden’s speech on Twitter, saying it was a “brazen politicization of January 6.”
The president’s willingness to attack Trump, if not in name, will come as a relief to some Democrats who believe Biden’s determination to seek bipartisanship and convey normalcy has slowed his agenda. In particular, they believe his strategy has prevented him from articulating the full case for a voting rights bill in the face of Republican-led efforts at the state level to change the rules.
They point to senators like Graham, who once prided themselves as bipartisan dealmakers, as evidence of a changed party.
Biden has resisted giving up on his view that the parties can work together and will likely point as evidence to his $1-trillion infrastructure bill that he signed in November. But Republican leaders were absent from Thursday’s commemoration and are likely to drive an even harder partisan wedge as this year’s midterm elections approach.
Those who see this moment as an emergency for American democracy may have finally gotten the speech they wanted. As he was leaving the Capitol Thursday morning, Biden was asked whether calling out Trump would lead to more division than healing.
“The way you have to heal, you have to recognize the extent of the wound,” Biden told reporters. “You can’t pretend. This is serious stuff.”
Staff Writer Eli Stokols contributed to this story.
Original Post: latimes.com
‘I Really Thought That I Was Going to Die That Day’
For decades, many members of Congress believed the U.S. Capitol — with metal detectors, barriers and its own police force — to be one of the safest places in the country.
In interviews, six members of Congress from California recount their stories from that deadly day: the surreal experience of realizing that their lives were at risk, that their workplace was being overrun and that the nation’s two-century record of a peaceful transition of power had crumbled.
‘All I could think of is: Get Out. Run. As fast as you can. You don’t want to be trapped in here. Run, run, run. And all of a sudden, they closed the doors on us and they told us to get on the ground. There’s people trying to break in outside the doors.’
Rep. Jimmy Gomez (D-Los Angeles)
Rep. Jimmy Gomez (D-Los Angeles) was in the gallery of the House chamber when the rioters breached the Capitol.
He and his colleagues were running across the gallery in hopes of escaping when he saw Capitol Police barricading the door the president uses to enter the chamber for the State of the Union. The rioters were too close for the lawmakers to get out safely.
“All I could think of is: Get out. Run. As fast as you can. You don’t want to be trapped in here. Run, run, run,” Gomez recalled. “And all of a sudden, they closed the doors on us and they told us to get on the ground. There’s people trying to break in outside the doors.”
Once police cleared the hallways and escorted the lawmakers to safety, several members of Congress got together and committed to remaining in the building and finishing the certification of the electoral college vote.
“That’s when [Reps.] Hakeem [Jeffries] and Liz Cheney said we’re going to go back and finish the job,” Gomez said. “They brought buses to get the members out, and [Rep.] Ruben [Gallego] and other Democrats were like, ‘Do not get on the buses.’ They said that’s how a coup happens: when the electeds are evacuated out of the Capitol or out of the palace. … So everybody that I was talking to was committed to staying.
“It was a terrible, terrible day. I don’t know if I said this to [Times reporter] Sarah [Wire] or a different reporter, but I did say like, ‘This is how a coup happens and this is how democracy dies and Donald Trump should probably be brought up on treason.’ And I still believe that to this day. I’m glad we impeached him. But now we know that there’s more people involved.
“I remember actually flying back from D.C. and, you know, I was on the plane with a bunch of MAGA people that were with their gear, like they’re coming back from a Republican convention or something.”
Gomez’s experience getting caught in the gallery left him shaken, but he says his resolve to stand up for democracy has only grown since that day.
“I’m a son of immigrants that believes in this whole idea of America, the idea of self-governance, the idea that you come here, you work hard, you believe in our values, you’re going to succeed, because I’m an example of that promise … in one generation. That doesn’t happen in a lot of countries. It doesn’t happen in Mexico, where my family’s from. So my resolve has been just more firm than ever.
“But it’s been tough, to be honest. I got triggered … a few months ago, and I didn’t really see it coming on, but I got hot and my vision got tunneled. So I had to kind of walk away. … But my resolve, it’s stronger than ever.”
‘I really thought that I was going to die that day, that I was going to be killed — that I would be literally killed — that I would possibly have to fight for my life, that so many of my colleagues would probably be victims.’
Rep. Norma Torres (D-Pomona)
Rep. Norma Torres, a Democrat from Pomona, was inside the House chamber when the attack began.
“It was a very violent day for me. I had never been in a situation where I felt so unsafe, and I really thought that I was going to die that day, that I was going to be killed — that I would be literally killed — that I would possibly have to fight for my life, that so many of my colleagues would probably be victims.”
A year ago, as Trump supporters rioted in the halls, Torres told Times staff writer Sarah D. Wire, who was reporting inside the Capitol on Jan. 6: “It’s horrible that this is America. This is the United States of America and this is what we have to go through, because Trump has called homegrown terrorists to come to the Capitol and invalidate people’s votes.”
Torres said she has changed since that day, noting that she no longer feels safe inside the Capitol complex and sees her GOP colleagues in a different light.
“There used to be a time in the past, before the Jan. 6 insurrection, where I could look and see somebody wearing their congressional pin and think, ‘That’s my ally.’ Even if they were Republicans, it was like, ‘OK, that’s my ally, and we’ll take care of each other no matter what happens.’ I don’t feel that way anymore about my colleagues. Not at all.”
‘Attacking a federal building, whether it is the U.S. Capitol or a court or anything else, does not tear down democracy.’
Rep. Doug LaMalfa (R-Richvale)
Rep. Doug LaMalfa, a California Republican from Richvale who was on the House floor when insurrectionists stormed the Capitol, called the riot a “deplorable situation.”
“Nobody should be breaking into this building for any purpose, let alone trying to stop a process that we were going through, and we were going through it in good faith, no matter what side you were taking on the issue of the day.”
He said he wasn’t concerned about the long-term prospects of democracy, because the republic is built on people, not buildings.
“Attacking a federal building, whether it is the U.S. Capitol or a court or anything else, does not tear down democracy. We’re not a democracy, by the way — we are a republic. Democracy is on election day.
“So our republic is not torn down by what building the meetings are held in, but by the heart and souls of the people that are elected to carry out the business of the government wherever that’s done.”
‘I always thought that personally I was very safe in this job, particularly when I’m in the Capitol complex, because it takes so much to get in there. Certainly I don’t think about it every day, but I don’t quite feel that same level of safety.’
Rep. Scott Peters (D-San Diego)
Rep. Scott Peters, a Democrat from San Diego, was in the House gallery when he saw something he’d never seen before: a nonmember of Congress at the rostrum.
“It was someone from the security force. He said: ‘Please stay in your seats. There’s been a breach in the Capitol.’”
“I didn’t know what to think at that point. I assumed that a few rogues had run by the metal detector. But I didn’t know how serious it was. Gradually I was kind of hurt that this was happening, thinking, ‘How could people get by security in one of the top terrorist targets in the country? We should be ready for this.’
“At one point, members were about to be evacuated when they were told to ‘get to the floor.’
“So everyone kind of got down low. And that was a little bit of a sobering moment. Then at one point, we heard an explosion. It sounded like a gunshot or a tear gas deployment. We didn’t know. I think it might’ve been the shot that killed my constituent. Ashli Babbitt was from San Diego.”
Peters, who was first elected in 2012, added that he doesn’t feel as safe as he did in his first term as a member of Congress.
“I always thought that personally I was very safe in this job, particularly when I’m in the Capitol complex, because it takes so much to get in there,” he said. “Certainly I don’t think about it every day, but I don’t quite feel that same level of safety.”
‘No matter what your politics, it wasn’t a good day.’
Rep. Ken Calvert (R-Corona)
Rep. Ken Calvert, a Republican from Corona, was in his office in a nearby building, not in the Capitol itself, but was still disturbed by what he saw and called it “very regretful.”
“I mean, it was troubling. But I wasn’t here in the building. And I have a lot of friends that were. Certainly, no matter what your politics, it wasn’t a good day. It’s a bad situation.”
He said he has hope that any changes to the institution of Congress and to relationships won’t be long-lasting.
“We have to get back to some kind of normalcy again. … I’m an optimist, I’m hoping we get back to some comity around here.
“These people are my friends. I may be in a different party and I don’t agree with them, but it doesn’t mean we can’t like each other. … We’re a divided nation, there’s no doubt about it, but people expect us to get together, get things done.”
‘Divisions here in this country are our biggest challenge. That’s what keeps me up at night. … It’s really trying to crack this nut of, how do we break this fever of division in our country?’
Rep. Mark Takano, a Democrat from Riverside
Rep. Mark Takano, a Democrat from Riverside, had to make his way from one House office building to the next during the riot.
“It looked like kind of a refugee zone with all these staffers sitting on the other side of the hallway, stepping over people.
“I got a couple of texts asking if I was OK,” Takano said. “But up until now, I don’t really have a reality of what is happening because I’m not looking at the news, but I’m getting a couple of texts from people saying, ‘Are you OK?’ And I thought this was kind of strange.
“I felt a little insecure, but I was in an office complex that was sort of nondescript. We were sheltering for an extended period of time. But I don’t have any kind of lingering trauma, personal trauma. I do have concerns going forward about the political culture of the country and the political norms of the country.”
Takano said he believes “the biggest challenge to America is ourselves.”
“That’s our biggest challenge. Divisions here in this country are our biggest challenge. That’s what keeps me up at night. … It’s really trying to crack this nut of, how do we break this fever of division in our country?
“I don’t see this being solved in one year or one election. It’s going to take a lot of courage. Persistence.”
Chief Justice Roberts Calls for Better Enforcement of Conflict Laws Involving Judges’ Stock Ownership
Federal courts need to do much better at enforcing conflict-of-interest laws that are supposed to prevent judges from deciding cases in which they hold stock, Chief Justice John G. Roberts Jr. said in his year-end report on the judiciary.
He was responding to a report in the Wall Street Journal in September that from 2010 through 2018, federal judges participated in 685 cases involving companies in which they or their spouses held stock. When contacted, many of them said they were unaware of the stock holdings because a money manager handled their investments.
The chief justice said federal law requires judges to recuse themselves from a case in which they have a direct financial interest, no matter how small.
“Let me be crystal clear: the Judiciary takes this matter seriously. We expect judges to adhere to the highest standards, and those judges violated an ethics rule,” he wrote.
“We are duty-bound to strive for 100% compliance because public trust is essential, not incidental, to our function,” he continued. “Individually, judges must be scrupulously attentive to both the letter and spirit of our rules, as most are.”
He said “professed ignorance of the ethics rule” or the failure of computer software designed to prevent such conflicts were no excuse. Most judges rely on a computer program to alert them when a case coming before them includes a company in which they hold stock. Sometimes a relevant company slips by the software if it is a subsidiary of a larger corporation.
Roberts said that may explain some lapses, but not for judges who had multiple violations. For them, “there is a more serious problem of inadequate ethics training…. our ethics training programs need to be more rigorous. That means more class time, webinars, and consultations. But it also requires greater attention to promoting a culture of compliance, even when busy dockets keep judicial calendars full,” he said.
He noted, however, that ethics violations appear to be rare. Of the 2.5 million civil cases handled by federal district courts in the nine years that were examined, he said the 685 violations account for less than three-hundredths of 1%. “That’s a 99.97% compliance rate,” he said.
Moreover, he said the newspaper story did not report that “the judge’s actions in any of those cases — often just routine docket management — actually financially benefited the judge.”
The chief justice said the Administrative Office of the U.S. Courts is working on improving technology and training to deal with the problem.
Judges are not prohibited from owning direct shares of stock. If their shares are held indirectly in mutual funds, they are not required to step aside.
He did not suggest imposing penalties for repeat violators. For the most part, federal judges are responsible for deciding when they should remove themselves from a case.
As chief justice, Roberts serves as the leader of the federal judiciary.
Roberts received the highest job approval rating of 11 U.S. leaders in a Gallup poll taken in early December and released earlier this week, with 60% approving of how he is handling his role.
Only two other leaders received positive job approval ratings from a majority of Americans surveyed: Federal Reserve Chairman Jerome H. Powell (53%) and Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases and chief medical advisor to President Biden (52%).
Roberts was the only leader who received majority approval from both Republicans (57%) and Democrats (52%).
He fared much better in the poll than elected leaders. Biden was approved by 43%, House Speaker Nancy Pelosi (D-San Francisco) by 40% and Senate GOP leader Mitch McConnell (R-Ky.) by 34%.
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