There’s too much to comment on right now, with the big SCOTUS decision dump. I’m going to zero in on Justice Elena Kagan’s dissent in the student loan case.  In brief, Justice Kagan said the court substituted its own policy judgment for that of Congress and the executive branch. She begins, “In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.”

“The Court’s first overreach in this case is deciding it at all,” she continued.

“Under Article III of the Constitution, a plaintiff must have standing to challenge a government action. And that requires a personal stake — an injury in fact. We do not allow plaintiffs to bring suit just because they oppose a policy,” she wrote.

“The plaintiffs in this case are six States that have no personal stake in the Secretary’s loan forgiveness plan. They are classic ideological plaintiffs: They think the plan a very bad idea, but they are no worse off because the Secretary differs. In giving those States a forum — in adjudicating their complaint — the Court forgets its proper role. The Court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies,” Kagan wrote.

As a result, “this Court today decides that some 40 million Americans will not receive the benefits the plan provides.”

She said it’s not — or should not be — the high court’s role to set policy.

“The policy judgments, under our separation of powers, are supposed to come from Congress and the President. But they don’t when the Court refuses to respect the full scope of the delegations that Congress makes to the Executive Branch. When that happens, the Court becomes the arbiter — indeed, the maker — of national policy,” she wrote, adding that “is no proper role for a court. And it is a danger to a democratic order.”

David Dayan at The American Prospect explains who the plaintiffs are in more detail.

The Biden Administration had argued that the loan forgiveness plan was authorized under a 2003 law called the Higher Education Relief Opportunities for Students Act, or HEROES Act. Chief Justice Roberts, in his majority decision, said the HEROES act was not specific enough.

Kagan countered that “Congress may have wanted the (Education) Secretary to have wide discretion during emergencies to offer relief to student-loan borrowers. Congress in fact drafted a statute saying as much. And the Secretary acted under that statute in a way that subjects the President he serves to political accountability — the judgment of voters. But none of that is enough. This Court objects to Congress’s permitting the Secretary (and other agency officials) to answer so-called major questions. Or at least it objects when the answers given are not to the Court’s satisfaction.  So the Court puts its own heavyweight thumb on the scales.”

Chief Justice Roberts disagreed, because reasons.

“It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” Roberts wrote. …

… “We do not mistake this plainly heartfelt disagreement for disparagement,” he continued. “It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”

Lame.

Kate Riga writes at TPM:

The majority — “as is becoming the norm,” Justice Elena Kagan narrates in her dissent — relies heavily on the major questions “doctrine,” a theory in vogue in right-wing legal circles. It dictates that when executive branch agencies take action of major “economic and political significance,” they lose the usual judicial deference they enjoy. That standard of significance is wholly in the eye of the beholder — an amorphousness the majority has continually taken advantage of. That has usually translated, in the hands of this conservative Court, into various Biden administration actions meeting their doom. 

While the Court often protests that it’s really shifting power back to Congress when it knocks down agency actions, it does so knowing that Congress is usually stalemated by various factors (split party control, the Senate filibuster) that make it extremely difficult for the legislature to pass many major laws. 

It also disrupts the usual separation of powers balance: Congress writes broad laws authorizing agencies to deal with issues (letting the Environmental Protection Agency regulate air pollution or the Education Department deal with federal student debt), passing on the responsibility of crafting the specifics to the expert-staffed agencies. But this Court continues to impose itself on that process, deciding that Congress didn’t meet some vague standard of specificity in its delegation and knocking down agency actions it doesn’t like. 

See also Ed Walker at Emptywheel and Elura Nanos at Law & Crime.

My question is, at what point will the Roberts court succeed in completely stripping away the aiblity of We, the People to govern ourselves?

And I will also predict, as sure as night follows day, that there will be people posting on social media who blame Joe Biden on why they have to start paying back student loans again.

How’s about that affirmative action decision, huh? There’s a lot of good — and also stupid — commentary out already. The good starts with the dissents written by Justices Sotomayor and Jackson.

I’ve spent a large part of the day yelling at telephone trees that refuse to connect me to real people, and I don’t have the energy to write much. See you tomorrow.

Republicans are very, very concerned about drugs being smuggled into the U.S. from Mexico. And they are right to be concerned. But what do they plan to do about it?

Apparently “going to war with Mexico” is the Number One plan. David Frum has an article at the Atlantic (which I can’t read, because I didn’t renew my Atlantic subscription, sorry) in which he calls “being willing to go to war with Mexico” the new “litmus” test for a “serious” Republican candidate.

They don’t plan to declare war on the government of Mexico, mind you, but they do want to send U.S. troops across the border to attack the cartels who are responsible for a lot of the drug smuggling. Apparently this remarkably stupid idea is not new, but it’s just now coming to my attention. Here is a May 2023 Reason magazine article about what several Republican contenders for the 2024 GOP presidential nomination are saying about sending troops into Mexico. Note that even Reason thinks this is a bad idea.

And a lot of them, including Ron DeSantis, want to use “deadly force” against migrants who might be bringing drugs across the border in their backpacks. In fact, I notice you can’t have a conversation with a Republican about drug smuggling before it veers off into a diatribe into all those migrants. One suspects this is what is really bugging them. The drug thing is just an excuse to shoot at brown people.

U.S. officials say that most of the drugs being smuggled by the cartels are crossing the border at official entry points like ports and are hidden in cars and tractor-trailers. so shooting at the brown people wading across the Rio Grande isn’t going to discourage the drug cartels any. But try explaining that to a Republican presidential candidate.

DeSantis doesn’t want to stop with sending troops across the border. He also wants to use the U.S. Navy and Coast Guard to block Chinese ships from reaching Mexican ports. Most of the component drugs required to make fentanyl are shipped into Mexico from China. Yeah, that wouldn’t possibly have any another international repercussions, would it?

DeSantis also has promised to end birthright citizenship if he becomes POTUS, which of course a POTUS cannot do. One assumes DeSantis knows this.

None of these people are ready for prime time. Consider, for example, Miami Mayor Francis Suarez, While interviewed by Hugh Hewitt, clearly drew a complete blank when asked about the Uyghurs. Which is pronounced WEE-gurs. He seems to have thought Hewitt was joking. Suarez has declared his candidacy for the presidency. Seriously?

The Uyghurs, of course, are a Muslim minority group in China, and the government of China is oppressing them brutally. Having decided that China Is Bad (and I won’t argue), the Right is outraged that the Uyghurs are being oppressed. But if Uyghurs were here, the Right probably would would want to shoot them.

CNN has THE tape that incriminates the bleep out of Trump.

David Ignatius has a pretty good analysis of what went down in Russia yesterday. No paywall.

Putin’s deal with renegade militia leader Yevgeniy Prigozhin is likely to be a momentary truce, at best. The bombastic rebel will head for Belarus, in a deal brokered by his pal President Alexander Lukashenko, in exchange for Putin dropping charges against him and his mutinous soldiers, according to Kremlin spokesman Dimitry Peskov.

Update: Putin blinked? Prigozhin and Putin must have come to some kind of accommodation. The Kremlin has announced that all charges against Prigozhin have been dropped. The Wagner group mercenaries have stopped the march on Moscow. WaPo reports,

The agreement for Prigozhin’s forces to turn around appeared to have been brokered by Belarusian President Alexander Lukashenko, who spoke with Putin before negotiating with Prigozhin, according claims from his office reported by Belarusian state-owned news agency Belta. With security guarantees for Wagner Group on the table, Prigozhin reportedly agreed to stop his forces’ progress toward Moscow.

A Kremlin media outlet reported that 15 Russian servicemen had been killed in the fighting with Wagner mercenaries. There is no way to verify that, I don’t think. A lot of people in Moscow already were evacuating and people had been told to not go to work over the next couple of days, so a possible attack on Moscow was being taken seriously.

***

I’s been a while since I’ve commented on the war in Ukraine. Things have gotten … interesting. Yevgeny Prigozhin, the leader of the Wagner mercenary group that has been fighting on Russia’s behalf, has turned on Putin and, according to some reports, is sending his mercenaries into Russia. Anne Applebaum in The Atlantic:

In a statement yesterday afternoon, he accused the Russian army of killing “an enormous amount” of his mercenaries in a bombing raid on his base. Then he called for an armed rebellion, vowing to topple Russian military leade

Prigozhin has been lobbing insults at Russia’s military leadership for many weeks, mocking Sergei Shoigu, the Russian minister of defense, as lazy, and describing the chief of the general staff as prone to “paranoid tantrums.” Yesterday, he broke with the official narrative and directly blamed them, and their oligarch friends, for launching the full-scale invasion of Ukraine in 2022. Ukraine did not provoke Russia on February 24, he said: Instead, Russian elites had been pillaging the territories of the Donbas they’ve occupied since 2014, and became greedy for more. His message was clear: The Russian military launched a pointless war, ran it incompetently, and killed tens of thousands of Russian soldiers unnecessarily.

Sounds like facts to me. And the New York Times is reporting that Prigozhin has claimed control of the Russian city of Rostov-on-Don.  And the mercenaries have been seen moving along a highway toward Moscow.

Back to Applebaum:

Maybe Prigozhin is collaborating with the Ukrainians, and this is all an elaborate plot to end the war. Maybe the Russian army really had been trying to put an end to Prigozhin’s operations, depriving his soldiers of weapons and ammunition. Maybe this is Prigozhin’s way of fighting not just for his job but for his life. Maybe Prigozhin, a convicted thief who lives by the moral code of Russia’s professional criminal caste, just feels dissed by the Russian military leadership and wants respect. And maybe, just maybe, he has good reason to believe that some Russian soldiers are willing to join him. …

,,, To understand what is going on (or to guess at it), you have to follow a series of unreliable Russian Telegram accounts, or else read the Western and Ukrainian open-source intelligence bloggers who are reliable but farther from the action: @wartranslated, who captions Russian and Ukrainian video in English, for example; or Aric Toler (@arictoler), of Bellingcat, and Christo Grozev (@christogrozev), formerly of Bellingcat, the investigative group that pioneered the use of open-source intelligence. Grozev has enhanced credibility because he said the Wagner group was preparing a coup many months ago. (This morning, I spoke with him and told him he was vindicated. “Yes,” he said, “I am.”)

But the Kremlin may not have very good information either. Only a month ago, Putin was praising Prigozhin and Wagner for the “liberation” of Bakhmut, in eastern Ukraine, after one of the longest, most drawn-out battles in modern military history. Today’s insurrection was, by contrast, better planned and executed: Bakhmut took nearly 11 months, but Prigozihin got to Rostov and Voronezh in less than 11 hours, helped along by commanders and soldiers who appeared to be waiting for him to arrive.

People are using the words “coup” and “civil war.” The Financial Times:

After months of lurid public infighting, the conflict between Yevgeny Prigozhin’s paramilitaries and the Russian defence ministry has boiled over into the first coup attempt in Russia in three decades. Although Putin appeared shocked by his former caterer Prigozhin’s “treason” during a stern five-minute address to the nation, the chaos indicated how years of covert warfare, poor governance and corruption had created the greatest threat to his rule in 24 years. “They never should have fought with a [private militia] during a war. It was a mistake to use anything except the army,” a former senior Kremlin official said. “It’s nice to have during peacetime, but now you just can’t do it. That’s what led to this story with Prigozhin — [Putin] brought it upon himself.” The roots of Prigozhin’s revolt date back to 2014 when Prigozhin set up Wagner as a way for Russia to disguise its involvement in a slow-burning war in Ukraine’s eastern Donbas region. The group helped keep eastern Ukraine under Russian proxy control and, as its mission expanded, gave Russia plausible deniability for sorties as far away as Syria and Mozambique.
But for all its ostensible independence — the Kremlin claimed to know nothing about it, while Prigozhin denied for years that the group even existed — Wagner was a big part of Russia’s official war machine. Initially run by GRU, Russian military intelligence, Wagner was lavishly funded from the national defence budget and often competed with the armed forces for lucrative contracts, according to people close to the Kremlin and security sources in the west. That nourished a rivalry that began years before Putin’s full-scale invasion of Ukraine, heated up during the bloody siege of the town of Bakhmut this winter and spilled out of control this week, the people said. “The main reason Prigozhin happened at all is because Russia?.?.?.?couldn’t create an effective army. They had to create an ersatz army instead, and it was obvious from the start that creating a parallel army has huge risks,” said Ruslan Pukhov, director of the Center for Analysis of Strategies and Technologies, a Moscow-based defence think-tank.

So, basically, the Russian military is now at war with itself. President Zelensky says that “Russia’s weakness is obvious.”

I’m making no predictions how this will turn out. I wouldn’t be sorry to see Putin toppled, but there’s no reason to believe that what might replace him would be an improvement.

CNN is reporting that Jack Smith has offered limited immunity to two Trump fake electors. Also,

Prosecutors have played hardball with some of the witnesses in recent weeks, refusing to grant extensions to grand jury subpoenas for testimony and demanding they comply before the end of this month, sources said. In the situations where prosecutors have given witnesses immunity, the special counsel’s office arrived at the courthouse in Washington ready to compel their testimony after the witnesses indicated they would decline to answer questions under the Fifth Amendment, the sources added.

Sounds like things are getting serious on that front.

Justice Amy Coney Barrett has some disclosure issues. A professor who had just taken a leadership role at the Religious Liberty Initiative (RLI) at Notre Dame Law School purchased Barrett’s private home months after she was sworn in in October 2020. This is the same group that hosted Justice Sam Alito at a conference in Rome last year, The one where he joked about the Dobbs decision. Ironically, Alito’s speech at the conference was about defending religious liberty. Anyway, according to several news stories the RLI has had several briefs before the court. In a little bit of googling I couldn’t find any positions they’ve taken that seemed terribly egregious. But it says something that Alito is the one they hosted at their big conference.

Do see Dahlia Lithwick, Justice Alito IS the Salmon.

The problem with continuing to frame the Harlan Crow/Barre Seid/Paul Singer stories as “ethics” issues is that we tend to think of “ethics” scandals in league with failures to use the correct shrimp fork. This is kind of what happened when we framed the great pay-to-play Supreme Court Historical Society caper that permitted one couple, the Wrights, to purchase access to the Alitos and the Scalias for the price of $125,000, as a “leak” story. We keep centering the justices and their “ethics” misfires at the expense of the real grifting here: Billionaires being assigned, like something out of the Big Brothers program, to individual justices for the purposes of lavish gift giving and influence.

Look again at ProPublica’s photos of Paul Singer, Antonin Scalia, Leonard Leo, and Samuel Alito and the Big Shiny Fishes they netted. If you think the fish is the trophy in this picture, you’re making a galactic-category error. The trophy is the justice. The vital question here is not why did Justice Alito agree to take the trip, because the trip sounds quite awesome. The question is why did Leo pick him to go, empty seat on the private jet notwithstanding, and why was building a friendship with someone who was in the literal business of reshaping the court to favor his own business so urgently necessary? …

… Nobody in this world enjoys hearing that they are the salmon. But that is why we don’t allow the salmon be the sole arbiter of whether they are the salmon. Let’s please stop framing this issue in terms of “ethics” and “friendships” and “honor.” It is a big-game safari for access to powerful people, and this game has been played since power was first invented. Naming this as an influence scheme clarifies the rules and it clarifies the stakes, and most of all, it clarifies the stench.

Do read the whole thing. Use a “private” window if you hit the paywall.

So the newest Supreme Court scandal involves Sam Alito. This is from ProPublica (by Justin Elliott, Joshua Kaplan, and Alex Mierjeski):

In early July 2008, Samuel Alito stood on a riverbank in a remote corner of Alaska. The Supreme Court justice was on vacation at a luxury fishing lodge that charged more than $1,000 a day, and after catching a king salmon nearly the size of his leg, Alito posed for a picture. To his left, a man stood beaming: Paul Singer, a hedge fund billionaire who has repeatedly asked the Supreme Court to rule in his favor in high-stakes business disputes.

Singer was more than a fellow angler. He flew Alito to Alaska on a private jet. If the justice chartered the plane himself, the cost could have exceeded $100,000 one way.

In the years that followed, Singer’s hedge fund came before the court at least 10 times in cases where his role was often covered by the legal press and mainstream media. In 2014, the court agreed to resolve a key issue in a decade-long battle between Singer’s hedge fund and the nation of Argentina. Alito did not recuse himself from the case and voted with the 7-1 majority in Singer’s favor. The hedge fund was ultimately paid $2.4 billion.

Alito did not report the 2008 fishing trip on his annual financial disclosures. By failing to disclose the private jet flight Singer provided, Alito appears to have violated a federal law that requires justices to disclose most gifts, according to ethics law experts.

Here’s where it gets hinky. ProPublica sent questions to Justice Alito to get his side of the story. ProPublica asked him to respond by Tuesday at noon. Alito did not respond. Instead, he published a hissy fit screen in the Wall Street Journal, headlined ProPublica Misleads Its Readers.

However, Alito’s little fit was published five hours before the ProPublica article was made public. Alito couldn’t have know what the article said, even though he cited it as if he had read it.

Paul Farhi and Robert Barnes write for WaPo,

Alito’s Journal column, bluntly headlined “ProPublica Misleads Its Readers,” was an unusual public venture by a Supreme Court justice into the highly opinionated realm of a newspaper editorial page. And it drew criticism late Tuesday for effectively leaking elements of ProPublica’s still-in-progress journalism — with the assistance of the Journal’s editorial page editors.

An editor’s note at the top of Alito’s column said ProPublica reporters Justin Elliott and Josh Kaplan had sent questions to Alito last week and asked for a response by Tuesday at noon. The editor’s note doesn’t mention that ProPublica hadn’t yet published its story — nor does it mention that Alito did not provide his answers directly to ProPublica.

The WaPo writers continue,

Alito, who wrote the landmark Dobbs decision that struck down federal abortion rights last year, didn’t list the trip on his financial disclosure forms, an omission that some ethics experts say could violate federal law.

The article noted the role of conservative judicial activist Leonard Leo in organizing the Alaska trip, including recruiting Singer to fly Alito to the lodge. The longtime head of the Federalist Society, Leo helped Alito win confirmation to the Supreme Court. Singer and the lodge’s owner were major donors to the Federalist Society.

All very neat and tidy, isn’t it?

The facts not in question are that in 2008 Alito flew to Alaska for a fishing trip in a private jet belonging to billionaire hedge fund manager and Republican donor Paul Singer, buthe  didn’t report the flight as a gift. He then failed to recuse himself—and ruled in Singer’s favor—in a 2014 Supreme Court case called Republic of Argentina v. NML Capital. The case involve one of Singer’s hedge funds. Alito claims that he didn’t make the connection between the hedge fund and Singer, and anyway there was no appearance of impropriety, for reasons.

And he wasn’t required to recuse or disclose and the lodge was “rustic” and not at all luxurious. Even though a room there cost $1,000 a night, Chris Hayes just said on MSNBC. And I liked this part:

As for the flight, Mr. Singer and others had already made arrangements to fly to Alaska when I was invited shortly before the event, and I was asked whether I would like to fly there in a seat that, as far as I am aware, would have otherwise been vacant. It was my understanding that this would not impose any extra cost on Mr. Singer. Had I taken commercial flights, that would have imposed a substantial cost and inconvenience on the deputy U.S. Marshals who would have been required for security reasons to assist me.

In other words, he was doing us all a favor by taking that seat on that private plane for the nice fishing holiday. We should thank him.

Above the Law: Sam Alito Laments It’s Getting So You Can’t Take All-Expense Paid Luxury Vacations Funded By Billionaires Anymore

David Kurtz, TPM, Sam Alito Is A Peevish, Self-Absorbed Piece Of Work

For what it’s worth, I read the ProPublica piece less as an indictment of Alito for failure to report or of the lax ethics rules binding Supreme Court justices and more as a window into the corrupt project to swing the court towards the right:

Leonard Leo, the longtime leader of the conservative Federalist Society, attended and helped organize the Alaska fishing vacation. Leo invited Singer to join, according to a person familiar with the trip, and asked Singer if he and Alito could fly on the billionaire’s jet. Leo had recently played an important role in the justice’s confirmation to the court. Singer and the lodge owner were both major donors to Leo’s political groups.

What it reads to me as: Leonard Leo was trotting out his newly confirmed show pony Samuel Alito in front of the megadonors who fund the conservative legal movement. No amount of ethics rules and regs will crack the foundational corruption of that effort.

This just plain stinks.

CNBC is reporting that Judge Canon has set the documents trial for August 14. Yes, of this year. “In the order Tuesday, Judge Aileen Cannon told Department of Justice prosecutors and lawyers for Trump to file all pretrial motions by July 24. Cannon also ordered that all hearings in the case, including the trial, will be held in U.S. District Court in Fort Pierce, Florida..”

Other people quoted in the article are doubtful it will really begin that soon, as there are a lot of legal kinks to work out and expectations that motions will be filed..  But I’m hoping that this indicates Canon was chastised enough the last time she was involved in Trump’s documents that she’s not going to pull any tricks on his behalf this time. We’ll see.

Trump’s newest excuse for why he didn’t return the documents was that the boxes contained a lot of other stuff, like his clothes. This is from an interview with Bret Baier on Fox News last night.

“Why not just hand them over then?” he asked.

Trump responded: “I wanted to go through the boxes and get all my personal things out of them. I don’t want to hand that over to [the National Archives and Records Administration] yet. And I was very busy, as you’ve sort of seen.”

The former president said there were “many things” beyond classified documents including “golf shorts, clothing, pants, shoes.” When Baier asked if the boxes contained defense documents, Trump said, “Not that I know of.”

Oh, yeah, the government absolutely will give you unlimited amounts of time to sort through your stuff and to find the national security documents they’ve been after you about for more than a year and a half. Not a problem.

Rolling Stone reported it this way:

“Like every other president I take things out,” Trump said. “In my case, I took it out pretty much in a hurry. People packed it up and left. I had clothing in there, I had all sorts of personal items in there. Much, much stuff.” After a brief digression to call his former attorney general Bill Barr a “coward,” Trump reiterated, “I have got a lot of things in there. I will go through those boxes. I have to go through those boxes. I take out personal things.” Finally, he clarified what those items were: “These boxes were interspersed with all sorts of things: golf shirts, clothing, pants, shoes, there were many things,” he said. 

He knows the word “interspersed.” I’m surprised. See also Matt Naham at Law & Crime, ‘I don’t want to hand that over to NARA yet’: Trump went on Fox News and essentially confessed to violating the Espionage Act.

He also denied that the secret government document about Iran he was caught talking about on tape was actually a document. Or secret.

According to the transcript, Mr. Trump describes the document, which he claims shows General Milley’s desire to attack Iran, as “secret” and “like, highly confidential.” He also declares that “as president, I could have declassified it,” adding, “Now I can’t, you know, but this is still a secret.”

But in the interview on Monday, with the Fox News anchor Bret Baier, Mr. Trump denied that he had been referring to an actual document and claimed to have simply been referring to news clippings and magazine pieces.

“There was no document,” Mr. Trump insisted. “That was a massive amount of papers and everything else talking about Iran and other things. And it may have been held up or may not, but that was not a document. I didn’t have a document per se. There was nothing to declassify. These were newspaper stories, magazine stories and articles.”

He actually was waving around a pair of his old golf shoes when he was caught on tape. There are lots of things in those boxes. And as they say, were you lying then, or are you lying now? Or both?

If this guy isn’t convicted, the U.S. should just admit it’s a failed state.

Today the Washington Post is reporting that the Justice Department really did delay looking into Trump’s involvement in January 6. (No paywall.)

A wariness about appearing partisan, institutional caution, and clashes over how much evidence was sufficient to investigate the actions of Trump and those around him all contributed to the slow pace. Garland and the deputy attorney general, Lisa Monaco, charted a cautious course aimed at restoring public trust in the department while some prosecutors below them chafed, feeling top officials were shying away from looking at evidence of potential crimes by Trump and those close to him, The Post found.