- On Monday, Amy Coney Barrett was officially sworn in as the new justice on the Supreme Court, ending a highly contentious partisan battle just a week before the election.
- In the weeks following the election, the new justice is set to hear several landmark cases, including the most recent challenge to the Affordable Care Act (ACA) and another lawsuit that involves LGBTQ discrimination protections.
- Many critics have expressed concerns that Barrett will push the court to overrule the ACA and try to roll back LGBTQ protections based on her previous public statements and personal views.
- As soon as the end of this week, the Supreme Court will also decide whether or not to hear two election-related cases regarding mail-in ballots extensions in key battleground states.
Barrett Appointed to Supreme Court
The Senate officially approved the nomination of Amy Coney Barrett to the Supreme Court on Monday with a vote of 52 to 48.
The decison fell almost entirely along party lines, and though her nomination was hotly contested, this outcome was largely expected.
Sen. Susan Collins (R-Me.) was the only Republican to vote against the appointment. No Democrats voted to confirm Barrett, marking the first time in 151 years that not one member of the minority party voted to confirm a justice.
The confirmation marks the end of the historic, lightning-fast nomination process defined by partisan divisions. Democrats repeatedly accused their Republican colleagues of hypocrisy for breaking the precedent they themselves set when they blocked President Barack Obama’s Supreme Court nomination ten months before the 2016 election.
That decision was made under the premise that the nomination came too close to the election and that the next president should get to pick the nominee.
Now, with just seven days to go before the election, Republicans have their new Supreme Court justice, as well as a solid conservative majority on the highest court for the first time since the 1930s.
Here’s a look at what happens next.
Affordable Care Act
Judge Barrett is being seated right as the court is scheduled to hear some highly consequential cases. Arguably the most significant is the latest challenge to the Affordable Care Act (ACA), also known as Obamacare. The court will begin hearing oral arguments on starting Nov. 10, just one week after the election.
With Barrett assuming her role on the bench right as the court is set to hear the landmark case, many expressed concerns that she could still sway the court to get rid of the ACA, thus leaving more than 20 million Americans without health insurance during a pandemic.
The new justice has publicly criticized the Supreme Court decision that upheld Obamacare as constitutional. In a 2017 article, she argued that under an originalist reading of the Constitution — interpreting it the way it was originally written — Obamacare would not be allowed.
In that same article, Barrett also criticized Chief Justice Roberts’ stance on the ACA and claimed that he considered too many factors outside of the Constitution
Notably, when pressed on the topic during her Senate confirmation hearings, she did give some supporters of the law hope when she outlined her views on the legal doctrine known as severability, which allows for parts of a law to be struck down without getting rid of an entire law.
Barrett told the Senators that the presumption is to always favor severing parts of a given law rather than scrapping the whole thing. Some argued that opinion would be favorable for how she may rule on Obamacare, but others remained skeptical.
Even before hearing the ACA arguments, the Supreme Court is also set to take up another key case that could allow private agencies that receive taxpayer funding to provide government services to deny those services to people based on their sexual orientation.
The case stems from a lawsuit filed against the City of Philadelphia by Catholic Social Services (CSS) in 2018. City officials canceled a contract with the agency to provide foster care services to children after learning that CSS refused to accept same-sex couples as foster parents because of its own religious objections.
A lower court ruled that the city was allowed to end the contract because it fell under the enforcement of its anti-discrimination policy, and an Appeals Court upheld that decision. Now the case is set to go before the Supreme Court, and the consequences could highly significant.
“A broad ruling could decide when religious organizations deserve exemptions from anti-discrimination laws that the groups say would cause them to violate deeply held beliefs, such as what constitutes a marriage,” The Washington Post explained.
Many Democrats and activists have criticized Barrett for her controversial views on LGBTQ rights, specifically pointing to a lecture she gave in 2016 where she defended Supreme Court justices who argued against making gay marriage legal.
Others have also noted a separate speech she gave, where she argued that Title IX — the law that protects people from sex-based discrimination in education programs or other activities that receive federal funding — does not apply to trans people.
During the Senate hearings, Barrett was largely tight-lipped about her views on key Supreme Court decisions. At one point she refused to say whether she believed the case that established gay marriage as legal had been decided properly.
There are also some other legal battles that Barrett could rule on as early as later this week. This Friday, the justices are expected to meet privately to decide what cases could still be added to this term’s docket.
Two of the cases they are considering are emergency orders regarding ballot extensions in two key battleground states: Pennsylvania and North Carolina.
Last week, the Supreme Court denied a request from Pennsylvania’s Republican Party to shorten the deadline in which state election officials could receive absentee ballots. The highest court took up the case after Pennsylvania’s Supreme Court sided with Democrats and allowed them to extend the deadline that mail-in ballots could be received to three days after the election.
Notably here, the Supreme Court did not directly rule against the Republicans, but instead split the decision 4-4, meaning the court was deadlocked, and thus the decision from the lower court would stand.
But now, with the ninth seat filled, Pennsylvania Republicans are asking the court to reconsider blocking the extension and to fast-track the decision.
In a very similar legal battle, the high court has also been asked to consider whether or not to hear a case brought by the Trump campaign and the North Carolina Republican Party asking them to block a mail-in ballot extension approved by the State Board of Elections last month.
The extension would allow officials to receive ballots postmarked by Election Day for nine days after the election. So far, that new deadline has already been held up by a district court and a federal appeals court.
Wisconsin and Kavanaugh
Currently, it is unclear if the court will hear either case, though it is worth noting that they have taken up a number of similar election-related legal battles in recent weeks.
On Monday, the Supreme Court voted 5-3 to reject attempts by Democrats in Wisconsin to extend the deadline for accepting mail-in ballots to six days after the election. Instead, the court ruled that mail-in ballots in the state can only be counted if they arrive on Election Day.
While the court did not provide a reason for this decision, as is normal in cases like this, some justices filed opinions including Brett Kavanaugh, who sparked controversy in his defense of his decision to strike down the extension.
“Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election,” he wrote, arguing for the importance of deadlines. “And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
Many condemned the justice, accusing him of issuing a shockingly partisan opinion and arguing that the situation he detailed would not be considered “flipping” the election, including Justice Elana Kagan, who took aim at Kavanaugh’s argument here in a footnote in her own opinion.
“But there are no results to ‘flip’ until all valid votes are counted,” she wrote. “And nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”
Some also pointed out the fallacy in Kavanaugh’s argument that mail-in ballots that arrive after election day will change the outcome that a majority of voters wanted.
“If Trump leads by 10 votes on Nov. 3 but 6,000 ballots arrive the day after having been sent on Oct. 24, most of them preferring former vice president and Democratic nominee Joe Biden, Kavanaugh worries that this constitutes an unfair rejection of the will of the public,” The Post wrote.
Others still argued that Kavanaugh’s opinion is especially concerning given the fact that currently, election officials in at least 18 states and Washington, D.C., do count ballots that arrive after Election Day.
“In these states, there is no result to ‘flip’ because there is no result to overturn until all valid ballots are counted,” Slate reported, noting that Kavanaugh’s opinion echoes false claims repeatedly made by President Donald Trump about absentee voting.
In fact, early that same day, the president posted a tweet that mirrored the justices’ argument almost exactly.
“Big problems and discrepancies with Mail In Ballots all over the USA,” he wrote. “Must have final total on November 3rd.”
The post was quickly flagged by Twitter as election-related misinformation.
See what others are saying: (The Washington Post) (Slate) (CNN)
Liz Cheney Ousted From GOP Leadership Role for Calling Out Trump’s Election Lies
- Rep. Liz Cheney (R-Wy.) was ousted from her leadership post by Republicans on Wednesday due to her repeated criticism of former President Trump and his continued efforts to spread false information about the 2020 election.
- The congresswoman remained defiant in remarks Tuesday night, where she argued Trump was “a threat America has never seen before” who “risks inciting further violence.”
- While many Republicans cheered Cheney’s removal as a key step to unify the party, others condemned the decision and accused GOP leadership of “canceling” her for speaking the truth.
- The move represents perhaps the strongest indication since the Jan. 6 insurrection that the Republican Party will continue to embrace Trump and punish dissenters.
House GOP Removes Cheney From Top Spot
The House GOP voted to remove Rep. Liz Cheney (R-Wy.), the number 3 Republican, from her leadership position Wednesday over her refusal to stay silent about former President Donald Trump’s false election claims.
The remarkable removal comes just four months after the former president incited an insurrection, causing major splits in the GOP.
The latest move is arguably the strongest signal that Republicans have decided their party line is unwavering loyalty to Trump, and that they believe his support is needed to win back the House in 2022.
This is not the first time that Republicans tried to oust Cheney from leadership. Earlier this year, Trump loyalists in the chamber held a vote to remove her after she voted to impeach the president for his role in the insurrection.
That attempt failed, largely because Cheney received backing from Republican leadership. This time, however, she did not have the support of Minority Leader Kevin McCarthy (R-Ca.), who began mobilizing to remove the congresswoman last week after she tweeted that the 2020 election “was not stolen.”
“Anyone who claims it was is spreading THE BIG LIE, turning their back on the rule of law, and poisoning our democratic system,” she added.
While Cheney has reiterated this stance many times since January, her latest comment seemed to be the final straw, and on Monday, McCarthy officially announced he was holding a vote on her position in a letter to his conference.
In the letter, which was full of contradictions, McCarthy claimed that the GOP was a “big tent party” of “free thought and debate,” while simultaneously calling for the removal of a leader who broke with Trump, and painting the vote as a necessary step to unify the party.
A majority of the party backed that decision Wednesday morning when McCarthy held a voice vote, making it so that the public will never know exactly how many people voted to remove the congresswoman.
Cheney, for her part, held firm to her beliefs in a defiant speech Tuesday ahead of the anticipated vote, where she continued to condemn Trump’s lies and accused her fellow Republicans of being complicit in undermining Democracy.
“Today we face a threat America has never seen before. A former president, who provoked a violent attack on this capital in an effort to steal the election, has resumed his aggressive effort to convince Americans that the election was stolen from him,” she said.
“He risks inciting further violence. Millions of Americans have been misled by the former president, they have heard only his words, but not the truth, as he continues to undermine our democratic process, sowing seeds of doubt about whether democracy really works at all.”
“This is not about policy. This is not about partisanship. This is about our duty as Americans,” she continued later. “Remaining silent and ignoring the lie emboldens the liar. I will not participate in that. I will not sit back and watch in silence, while others lead our party down a path that abandons the rule of law and joins the former president’s crusade to undermine our democracy.”
Cheney’s parting speech drew boos from some of her colleagues, many of whom cheered her ouster Wednesday.
“Liz Cheney is the GOP of the past,” Rep. Lauren Boebert (R-Co.) tweeted. “We are not going back.”
Trump himself also issued a series of statements calling Cheney a “bitter, horrible human being,” and claiming that Republicans “have a great opportunity today to rid themselves of a poor leader, a major Democrat talking point, a warmonger, and a person with absolutely no personality or heart!”
However, many House Republicans condemned the move.
“i predict that the history books of the future will not celebrate,” Rep. Adam Kinzinger (R-Il.) wrote in a thread “They will say this was the low point of the Republican Party.”
“Liz Cheney was canceled for speaking her mind,” Rep. Ken Buck (R-N.Y.) told reporters.
There has been a similarly mixed reception to Cheney’s anticipated replacement, Rep. Elise Stefanik (R-N.Y.), who McCarthy has tapped to fill the position.
Stefanik took office as a moderate cheered for openly defying and condemning Trump. Her role in Congress changed drastically in the fall of 2019, when she became one of the most vocal opponents of his first impeachment, prompting him to tweet, “A new Republican Star is born.”
After that, she booked more TV appearances, campaign donations, and general fame. Her support for the former president grew and she doubled down, spreading his false election claims in 2020.
If she is elected to leadership, as is expected, the top three House Republican leadership positions will all be held by people who voted to not certify President Joe Biden’s win.
Cheney, for her part, has made it clear she does not intend to go anywhere. After Wednesday’s vote, the congresswoman told reporters that she will do “everything” she can “to ensure that the former president never again gets anywhere near the Oval Office.”
“The nation needs a party that is based upon fundamental principles of conservatism, and I am committed and dedicated to ensuring that that’s how this party goes forward, and I plan to lead the fight to do that,” she added.
According to The Washington Post, sources have said that Cheney already spent the last week planning for increased travel and media appearances to promote her case and rally other Republicans behind her.
She likely will not be alone in her endeavors: on Tuesday, The New York Times reported that more than 100 current and former anti-Trump Republicans are preparing to release a letter this week threatening to split from the GOP and create a third party if changes are not made.
See what others are saying: (The New York Times) (The Washington Post) (NPR)
Biden Says Americans Will Lose Unemployment Benefits if They Turn Down “Suitable” Jobs
- President Biden said Monday that out-of-work Americans will lose their enhanced federal unemployment benefits if they turn down a “suitable” job offer.
- The announcement follows a stark jobs report from the Labor Department, which found that just over 260,000 jobs were added in April when nearly 1 million had been projected.
- Republican lawmakers blamed the additional $300 a week in joblessness benefits provided by the federal government, and several Republican-led states have opted out of the programs, arguing that doing so will encourage people to go back to work.
- Biden rejected those arguments, noting that numerous studies disprove that claim. Instead, he said American corporations should do more to entice people to work, such as providing pay raises and COVID safety precautions.
Biden Addresses Benefits as Job Creation Falters
President Joe Biden on Monday ordered the Labor Department to ensure that Americans will lose their enhanced federal unemployment benefits if they do not accept a “suitable” job when offered.
In remarks at the White House, Biden also said he would direct the agency to work jointly with states to reimpose the requirement that people collecting joblessness benefits must show they are actively looking for work.
The comments come just days after the latest jobs report showed far fewer positions created than expected. The Labor Department reported that just 266,000 jobs were added last month, even though economists had predicted it would be about 1 million.
While broad swaths of the U.S. economy are opening up as more Americans get vaccinated, some employers have reported that they are having a hard time finding workers.
Republicans have largely argued that this is because of the additional $300 a week in unemployment benefits Americans are collecting from the last stimulus package.
The Unemployment Debate
In his address, however, Biden hit back on that claim. He said the White House does not “see much evidence” that benefits have deterred people from taking jobs — a fact that is supported by numerous studies on pandemic unemployment benefits. He also argued that corporate America has to do more to encourage people to come back to work.
The president placed responsibility on employers, especially those who have accepted federal relief, to raise their pay, protect their workers from the virus, and help them gain access to vaccinations so out-of-work Americans feel safe going back.
“My expectation is that as the economy comes back, these companies will provide fair wages and safe work environments, and if they do, they’ll find plenty of workers,” he said. “And we’re all going to come out of this together and better than before.”
Some companies have already started to take similar steps, like Chipotle, which announced Monday that it was raising its average wage to $15 an hour to address the labor shortage. However, many big companies will simply wait it out.
Those businesses may not have to wait long because a growing number of Republican-led states have been rejecting the increased federal unemployment money. On Monday, the governors of Alabama and Mississippi joined Montana, South Carolina, and Arkansas and announced their states would be leaving the programs by mid-June. More states are likely to do the same.
Trump’s DOJ Allegedly Obtained Phone Records of WaPo Reporters Covering Russia Probe
- Former President Trump’s Justice Department secretly obtained phone records from Washington Post journalists covering Russia’s involvement in the 2016 election, the outlet reported Friday.
- The DOJ seized records of the work, home, and cellphone numbers of three reporters from April 15 to July 31, 2017. Those records included who the calls were with and how long they were, but not what was said.
- Many journalists and Free Speech activists condemned the action and called on the Biden administration to end the practice of record subpoenas, which are often used by the government to find clues about possible sources and can harm key newsgathering.
- A DOJ spokesperson defended the previous administration’s actions, arguing that the news media are not the targets of such investigations but rather, “those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”
Washington Post Reporters Subpoenaed
The Washington Post reported Friday that the Justice Department under former President Donald Trump secretly obtained phone records from some of its journalists regarding reporting they did on Russia’s role in the 2016 election.
According to the outlet, the DOJ sent three separate letters dated May 3 and addressed to three former Post journalists to inform them they were “hereby notified that pursuant to legal process the United States Department of Justice received toll records associated with the following telephone numbers for the period from April 15, 2017 to July 31, 2017.”
The letters, which listed work, home, or cellphone numbers, also stated that prosecutors had gotten a court order to obtain records for the reporters’ work email accounts, but that they did not ultimately not obtain those records.
The phone records, the outlet said, “included the numbers of all the calls made to and from the targeted phone over the specified time period, and how long each call lasted, but do not include what was said in those phone calls.”
“Investigators often hope such records will provide clues about possible sources the reporters were in contact with before a particular story published,” it added.
The Post reported that the letters do not say why the DOJ was seizing the phone records. However, it did note that toward the end of the time period outlined, the three reporters had written a story about classified U.S. intelligence intercepts that indicated then-Attorney General Jeff Sessions had discussed the Trump campaign with Russia’s ambassador to the U.S. when he was a sitting senator in 2016.
The alleged move is significant because it is rare for the DOJ to use subpoenas in order to obtain records of reporters in leak investigations. In fact, the last high-profile seizure of communication records was part of an investigation into a source cited in 2017 reporting that was also about the investigation into Russian election interference.
Also very notably, these subpoenas need to be approved directly by the attorney general. A spokesperson for the DOJ told The Post that the records had been requested in 2020, meaning it would have likely taken place under Attorney General William Barr, who stepped down on Dec. 23.
The allegations immediately drew criticism from First Amendment advocates and journalists, who have long opposed the practice of obtaining these kinds of records, and argued that attempts to identify sources of leaks hurt critical news gathering and reporting.
“We are deeply troubled by this use of government power to seek access to the communications of journalists,” said Cameron Barr, the current acting executive editor of The Post. “The Department of Justice should immediately make clear its reasons for this intrusion into the activities of reporters doing their jobs, an activity protected under the First Amendment.”
Many other journalists also demanded that the Biden administration ensure such practices are not replicated, noting the escalated efforts to subpoena reporters records under both the Trump and Obama administrations.
However, a DOJ spokesperson defended the previous administration’s decision to subpoena The Post reporters in a statement to the outlet.
“While rare, the Department follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information,” the spokesperson said.
“The targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”