Guest: Legal journalist Mark Joseph Stern; Also: Cybersecurity and voting system experts alert CA SoS to stolen election software threat to Recall...
By Brad Friedman on 9/7/2021, 6:07pm PT  

We're back! Luckily it was a slow news week while we we're off last week, right? Okay, maybe not. So, on today's BradCast we begin to pick up on just some of that "slow" news. [Audio link to full show is posted below this summary.]

After nearly month or so of trying to ring alarm bells for the national media and election officials in California, hoping they would connect the dots between the ongoing CA Gubernatorial Recall election and the threat of Dominion Voting Systems election software stolen from a Mesa County, Colorado's County Clerk's office (apparently BY the Mesa County Clerk herself!) and released into the wilds of the Internet, we had some progress late last week!

Eight of the nation's top cybersecurity and voting systems experts sent an urgent 3-page letter [PDF] to CA Sec. of State Shirley Weber, warning her about the threat that the stolen software now poses to the CA Recall (Election Day is next Tuesday, Sept. 14th) and the need for her to immediately mandate a statewide post-election Risk Limiting Audit to both ensure the computer-tallied results are accurate and to offer confidence in those results to those who may think they are not. That, no matter who wins or loses. As we reported late last week at The BRAD BLOG, the scientists, in their letter to Weber, warn the Secretary that "it is critical to recognize that the release of the Dominion software into the wild has increased the risk to the security of California elections to the point that emergency action is warranted."

Associated Press reported on the letter as it was released last Thursday, as did we. But the response from the SoS' office for now is, shall we say, somewhat lackluster. We hope to have more on this as the week progresses and Election Day nears. But at least it's not only us with our hair on fire about these serious concerns.

Next, there were three disturbing rulings issued --- largely in the middle of the night --- by the stolen and packed GOP majority on the U.S. Supreme Court while we were gone or just before we left. All three cases have major consequences. And, in all cases, the rulings were issued without hearings, oral argument, public debate or oversight, or even full explanation from the rightwing Justices.

One "stunning" ruling prevents President Biden from setting U.S. immigration policy, by forcing him to continue the so-called "Remain in Mexico" policy instituted by his predecessor for asylum seekers coming up from Central America; Another blocked the President's moratorium on evictions amid the pandemic; and, perhaps the most disturbing one, as you may have heard, effectively overturns the long-standing precedent of Roe v. Wade's constitutional protections of the right of a woman to have an abortion in the state of Texas. All three decisions were issued with no hearings or public debate and virtually no comment from the Justice's as part of the Court's "Shadow Docket" while they are on Summer break between terms.

Longtime legal journalist MARK JOSEPH STERN has been warning for a while about the increasing use (and abuse) of the "Shadow Docket" by the increasingly activist authoritarian Court, now that it's been packed with three Donald Trump appointees, rammed onto the Court after Senate Republicans did away with the filibuster to do so. Now, as we discuss with Stern on today's program, it should be clear to just about everyone what it is that he's been warning about.

"With the Shadow Dockets, it means that basically we all have to be on high alert 24 hours a day, 7 days a week, because at any time the Supreme Court could issue a monumental decision overturning decades of precedent," says Stern, with little or no warning or explanation.

On the "Remain in Mexico" ruling, Stern observes: "You might have thought that the Supreme Court does not let lower court judges issue sweeping injunctions blocking the President's immigration policies. As you recall, under Trump, the Supreme Court's conservatives leapt in, time and time again, to swat down judges who had tried to halt the former President's immigration rules. But all of that is out the window now that Joe Biden is in the White House. Instead, we have a new principle here that, apparently, the President no longer runs foreign policy." In fact, in this case, that lower Trump-appointed judge actually ordered Biden to enter foreign policy negotiations with Mexico and, astonishingly, the high court let the order stand without comment!

"The hypocrisy here is stunning," Stern argues. "The Supreme Court said that the President gets to make immigration law over and over again under Trump. Remember the travel ban case? Remember the wealth-test case? Remember all of these awful cases where the Supreme Court said Trump can do whatever he wants? And then Biden comes in, and the Supreme Court says Biden can't do anything he wants."

On the eviction moratorium, also overruled by the rightwing Justices, "we're being deprived of any kind of clear debate" via the Court's Shadow Docket, where "the conservatives are awarding themselves more and more power to pretend that debatable decisions in the lower courts are so obviously wrong that they can intervene and resolve them whenever they want."

But, of course, the most egregious item decided without explanation or public debate --- or even a hearing in the lower appellate courts! --- over the last two weeks, is the SCOTUS decision that allows Texas Republicans' new abortion ban law to take effect. The state statute bans all abortions after the sixth week of pregnancy and deputizes citizens to file lawsuits against anyone --- from family members to friends to clergy members to Uber drivers --- who helps a woman in any fashion to obtain an abortion. Such citizen "bounty hunters" will each be awarded at least $10,000 for doing so, under Texas law. All of this, of course, blatantly undercuts the precedent set by SCOTUS in 1973's Roe v. Wade, establishing a Constitutional right to an abortion. And, it's all now being done under the cover of the Shadow Docket, which even Chief Justice Roberts, in this one instance, was forced dissent against.

Whether the Lone Star State's convoluted scheme of deputizing citizens to enforce the law, rather than the state doing so directly, gets around the mandates of Roe is "a huge question, and it's one that I think deserves a full airing, especially after 50 years of Americans enjoying a constitutional right to reproductive autonomy," Stern explains. "It's the kind of thing that would be debated in public if this were a regular case. And also, traditionally in the law, there's a really strong bias toward the status quo, to keeping things as they have been until the Court can have a full and fair hearing on the merits. We didn't get that hearing here, and yet the Court refused to step in and maintain the status quo of abortion access. So we are left with the nation's second largest state shuttering its abortion providers and forcing women to flee out of state if they want to terminate a pregnancy."

So, what, if anything, can be done about the emboldened far-right's abuse of the Shadow Docket at SCOTUS? We discuss that as well, including measures that could --- and, arguably should --- be taken immediately by Congress to reign in an out-of-control Court. Those measures, however, would likely require Democrats to reform the Senate filibuster in order to enact them --- ya know, just as Senate Republicans did to jam these far-right activist jurists onto the Court in the first place, where they are now using the Shadow Docket to, cowardly, run wild. And, all of that, before SCOTUS even begins its term on the first Monday in October, when, Stern predicts, there is even more bad news regarding freedom and civil rights in these United States...

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