Wednesday, September 24, 2025
Tuesday, September 23, 2025
Jerome Cohen (95) first American to practice law in China
Trump criticizes UN at the UN General Assembly
‘Your Countries Are Going to Hell’: Trump Airs His Grievances at the U.N.
In a meandering address, President Trump rebuked global institutions and complained about immigration, environmentalists, windmills and more.
He accused environmentalists of wanting to “kill all the cows.” He personally insulted the Muslim mayor of London. He bashed allies and foes across the globe. He questioned whether the United Nations should even exist.
“What is the purpose of the United Nations?” President Trump asked a gathering of the U.N. General Assembly on Tuesday, in a meandering, 56-minute speech that extended nearly four times as long as his allotted time limit.
“I’m really good at this stuff,” Mr. Trump said. “Your countries are going to hell.”
In his remarks, Mr. Trump lectured the United Nations and other countries about how they were failing, and aired a list of grievances. Those included but were not limited to: a malfunctioning escalator at the U.N.; his not winning a renovation contract at the United Nations during his time as a real estate developer; windmills; other countries’ immigration policies, which he claimed were leading them to ruin; and the way Brazil is being run.
Soon after his speech, Mr. Trump made news in another forum. In a social media post, he made a stunning pivot on Ukraine, saying the country, with the support of Europe, was “in a position to fight and WIN all of Ukraine back in its original form.”
Commonweal Editors: Robed Collaborators The Supreme Court enables MAGA authoritarianism
Robed Collaborators
In the early days of his second term, some worried that Donald Trump would cause a constitutional crisis by defying the Supreme Court after it blocked one of his several blatantly illegal actions. Such a crisis may yet materialize, but thus far the court has invited crisis not by blocking the Trump administration’s actions but by authorizing them.
There were clear signs the court would play enabler even before Trump was reelected. In the July 2024 Trump v. United States decision, concerning Trump’s attempt to stop certification of the 2020 election results, the six conservative justices, with no constitutional basis or precedent, granted the president immunity for crimes committed “within the outer perimeter of his official responsibility.” This included absolute immunity for acts central to the president’s Article II powers and “presumptive immunity” for other official acts.
As Jack Goldsmith argues, the court’s ruling didn’t just offer Trump a shield against future prosecution; it handed him a sword. Writing for the majority, Chief Justice John Roberts advanced a “maximalist theory of executive power.” An adherent of the ahistorical “unitary-executive theory,” Roberts contended that “the President is a branch of government, and the Constitution vests in him sweeping powers and duties,” including broad discretion in enforcing (or refusing to enforce) the laws and directing and removing subordinates in the executive branch. As Peter M. Shane points out in The Atlantic, Roberts all but seconded Trump’s illiterate claim that “I have an Article II, where I have the right to do whatever I want as president.” But both Trump and Roberts ignore the parts of Article II that make clear the executive branch is meant to be made up of “executive departments” structured and vested with authority by Congress. “This is not at all a one-person branch of government,” Shane writes, “and its design is not the prerogative of the president.”
At the time of the ruling, many observers threw cold water on dissenting liberal justices’ worries that it would give the president a pass to commit egregious crimes like killing perceived enemies. But on September 1, that’s just what Trump did. In an outrageous breach of both international and U.S. law, he ordered an airstrike on a Venezuelan boat suspected of smuggling drugs, killing its eleven passengers. The administration offered no evidence the boat was violating the law and no plausible legal rationale for its action. Secretary of State Marco Rubio lamely justified the use of military force by characterizing the alleged drug boat, which had reportedly turned around, as an “imminent threat.” Trump announced another similarly lawless attack on September 15.
Michael Sean Winters on reactions to Charlie Kirk's murder - National Catholic Reporter
Reactions to Charlie Kirk's murder are anemic
NCR - Michael Sean Winters
De mortuis nil nisi bonum. Don't speak ill of the dead. It was one of the first moral norms I recall learning and it could not be more straightforward. For all persons, the dead are no longer present to defend themselves, so it is unjust to speak ill about them. For Christians, the dead are before the judgment seat of God, a thought that should cause all of us to tremble, mindful that we, too, will someday stand before God. Speaking ill of the dead, then, is unjust and prideful.
Kirk's causes were not my causes, with one major exception: free speech. If Kirk was a champion of free speech, and he was, than it seems the worst way to honor his legacy is to silence anyone for what they said about him. Disinvite them from a party for speaking ill of the dead? Absolutely. Fire them from their job? That dishonors the legacy of anyone who championed free speech.
It comes as no surprise that our nation's vice president, JD Vance, wanted to have it both ways. "Well, I think I speak for every person in this room, and I think I speak for a majority of our fellow Americans, when I say: We do not attack or commit violence against people because we disagree with their ideas," he told a political rally in Michigan. The compassless Vance then filled in to host the podcast "The Charlie Kirk Show" where he said, "Call them out, and hell, call their employer. We don't believe in political violence, but we do believe in civility."
Monday, September 22, 2025
Friday, September 19, 2025
Josh Marshall - Don't panic..fight back
First, my perennial axiom: We are in a contest of spectacles of power. The first and most important thing is not to react or complain or bewail but to attack. To this end, where I would start, especially if I were a Democratic elected official, is by taunting every journalist I came into contact with from ABC, CBS and every other news and media organization that is now owned by the White House — which is a rapidly growing list. It may soon include CNN if Paramount/Skydance succeeds in purchasing Warner Brothers Discovery.
Tuesday, September 16, 2025
Monday, September 15, 2025
Amy Barrett's soporific memoir spurns candor
Cass Sunstein - the collapse of law under tyranny
What is it like under Communism? What is it like under Fascism?
The best book I know, on life under tyranny, is Sebastian Haffner’s Defying Hitler. It’s like Orwell’s 1984, but it’s all true, and it’s about the rise of Big Brother, more or less — the collapse of democracy and the rise of tyranny, in real time. It’s astonishingly specific, and it’s searing.
(The only thing I don’t like about the book is the title; it’s not really about defying Hitler. It’s about what it was like under Hitler. If anything, it’s about Nor Defying Hitler. That would have been a much more accurate title.)
Haffner was a trained lawyer, and while the book is light on law, it offers some glimpses. If the glimpses are taken together, we can see what it’s like when the rule of law collapses, and when the law is whatever the leader, and those who work for him, say it is.
Here are three glimpses.
Glimpse One:
Early in the regime, there “were brown SA uniforms in the streets,” but it was “business as usual.” While Hitler could “utter the vilest abuse against the Jews,” there was a Jewish judge, a member of the Senate, “who continued to give his astute and careful judgments, and these judgments had the full weight of the law and could set the entire apparatus of the state in motion.”
In these circumstances, Haffner “was inclined to view the undisturbed functioning of the law, and indeed the continued normal course of daily life, as a triumph over the Nazis.” That’s early on.
Glimpse Two:
Haffner is at a carnival ball in Berlin - a big event, a party, with dancing and romance, with “a teeming crowd, glimpses of silk, naked shoulders and female legs.” It’s energetic, flirt-full, and fun. Then someone apparently shouted, “Get up, the police are here!”
Haffner “did not think that was a particularly good joke.”
But it wasn’t a joke at all. Haffner approached one of them “a little deprecatingly, smiling and confident, as one approaches a policeman to ask for directions,” and asked, “Do we really have to leave?” The answer was slow, icy, and malicious: “You have permission to leave.” (Pause over that.)
Haffner writes: “I shuddered. I had seen the face of the SS.” (Question: Where was the law in all this?)
Glimpse Three:
A new member of the senate, a new judge, enters the scene. He is apparently “high up in the SS. He saluted with outstretched arm and a resounding, ‘‘Heil Hitler!’”
The newcomer is powerful. In some cases, the existing judges try to rule by reference to “the paragraphs of the law.” The newcomer overrules them.
He “would then instruct his co-judges that the meaning was more important than the letter of the law. He would quote Hitler.” And then “he would insist on some untenable decision.”
Haffner adds, “It was piteous to observe the faces of the old [judges] as these went on. They looked at their notes with an expression of indescribable dejection.” This was “the decline of this great, proud, old institution.”
One thing to unpack is the conflict between “the letter of the law” on the one hand and “the meaning” on the other. Why are they different?
For some judges, the meaning of the law just is the letter of the law. What Haffner is capturing is signaled by these four words: “He would quote Hitler.” In other words, the letter of the law would have to yield to Hitler’s will. Thus the words: “You have permission to leave.”
Haffner’s brief account is consistent with those from others, above all Ingo Muller, who show that under Nazism, many judges essentially capitulated, in part by drawing a distinction between (1) the letter of the law and (2) the meaning of the law, where (2) is ascertained in large part by quoting Hitler (or something like that).
You could understand all this to be a cautionary tale about the separation of powers. You could also understand it as suggesting some circumstances in which the argument for textualism (“the letter of the law”) has a lot of appeal.
Sunday, September 14, 2025
Cal State Bar seeks State High Court review of Eastman disbarment
Prevailing party State Bar seeks Supreme Court review in Eastman disbarment proceeding [Updated with link to petition for review]
It’s not often that you see a winning litigant ask the Supreme Court to hear their case. But that’s what the State Bar did on Monday.
The background: At the urging of the State Bar’s Office of Chief Trial Counsel, California’s State Bar Court in June recommended that President Trump’s former lawyer, John Eastman, be disbarred in the state. The recommendation was filed with the Supreme Court (Eastman on Discipline), which is to decide whether to accept the recommendation and disbar Eastman.
Eastman is almost certain to seek Supreme Court review of the State Bar Court decision. His counsel last week was granted a three-week extension — until September 29 — to file Eastman’s petition. In the interim, however, the State Bar filed its own petition for review, even though it said, “The State Bar agrees with both the [State Bar Court] Review Department’s culpability findings and its disbarment recommendation.”
The State Bar is asking the court “for review of two legal errors that, while they did not affect the outcome in this case, may significantly impact future cases.” The petition claims that “the Review Department erred in holding that, if subject to First Amendment protection, all of Eastman’s relevant statements were core political speech triggering strict scrutiny” instead of intermediate scrutiny and that “the Review Department erred in declining to find significant harm as an aggravating factor.”
In other types of cases, a prevailing party would normally not petition for review, but would, in an answer to the losing party’s petition, “ask the court to address additional issues if it grants review.” (Rule 8.500(a)(2).) It’s not clear if the State Bar has that option under the separate rules governing Supreme Court proceedings in disciplinary matters. (See rule 9.13 et seq.) But its petition states in a footnote, “Because the two issues identified in this petition did not affect the ultimate outcome in the Review Department, the Court may determine that they do not independently warrant review if Eastman’s petition is denied. For all the reasons set forth herein, however, they warrant review if Eastman’s petition is granted.”
As with any case other than a death penalty appeal, the Supreme Court can deny review. (Rule 9.16(b).) Unlike other cases, however, a denial “is a final judicial determination on the merits” and is followed by the filing of the State Bar Court’s recommendation “as an order of the Supreme Court.” (Ibid.)
After any unfavorable California Supreme Court action, Eastman can seek U.S. Supreme Court review.
Eastman currently remains not eligible to practice law in California, his status since March of last year.
Wednesday, September 10, 2025
Sherrilyn Ifill - SCOTUS, ICE Raids and facts
SCOTUS, ICE Raids & The Matter of Facts
There is a lot one can say about today’s Supreme Court order lifting the stay issued by a federal district court in Noem v Vasquez Perdomo,[i]. This is the case that challenges the constitutionality of DHS immigration raids in California in which officers appear to rely on racial and language profiling to justify stops and arrests of suspected undocumented migrants. The District Court issued a stay, pausing the raids while the merits of the Administration’s policy are litigated. The Trump Administration of course appealed the stay order. Today the Supreme Court lifted the stay, allowing the raids to continue during the pendency of the litigation.
It’s important to note that the Court lifted the stay without explaining its rationale for doing so – another consequential decision on the Court’s “shadow docket,” that defers to President Trump’s policy decisions before a full trial on the merits. But what we do have is a “concurring opinion” offered solely by Justice Kavanaugh. And it is a doozy.
Working while Brown is the new driving while Black - Michael Dorf
Monday, September 8, 2025
Supreme Court (6-3) OKs ethnic profiling in ICE sweeps on Los Angeles
In an unsigned order Kristi Noem v. Vasquez Perdomo, over dissents by the three democratic appointees, the Supreme Court has vacated an order by a California federal judge halting the ethnic profiling of suspected aliens in Los Angeles California undertaken by ICE under the label "Operation at Large".. Saying that "at least 15 million people are in the United States illegally"Associate Justice Brett Kavanaugh concurred in a lengthy opinion. Kavanaguh observed:
To the extent that excessive force has been used, the Fourth Amendment prohibits such action, and remedies should be available in federal court. I agree with the dissent on that point. But to reiterate, this injunction against brief stops for questioning does not address the useof-force issue. In short, the balance of harms and equities favors the Government here.
https://www.supremecourt.gov/opinions/24pdf/25a169_5h25.pdf
But Associate Justice Sonia Sotomayor, the only Hispanic person ever to serve on the Court, filed a bitter dissent in which Justices Kagan and Brown-Jackson concurred:
In early June, the Government launched immigration enforcement raids across Los Angeles and its surrounding counties. During the raids, teams of armed and masked agents pulled up to car washes, tow yards, farms, and parks and began seizing individuals on sight, often before asking a single question. A Federal District Court found that these raids were part of a pattern of conduct by the Government that likely violated the Fourth Amendment. Based on the evidence before it, the court held that the Government was stopping individuals based solely on four factors: (1) their apparent race or ethnicity; (2) whether they spoke Spanish or English with an accent; (3) the type of location at which they were found (such as a car wash or bus stop); and (4) the type of job they appeared to work. Concluding that stops based on these four factors alone, even when taken together, could not satisfy the Fourth Amendment’s requirement of reasonable suspicion, the District Court temporarily enjoined the Government from continuing its pattern of unlawful mass arrests while it considered whether longer-term relief was appropriate. Instead of allowing the District Court to consider these troubling allegations in the normal course, a majority of this Court decides to take the once-extraordinary step of staying the District Court’s order. That decision is yet another grave misuse of our emergency docket. We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.