Index: The "Supreme" Court
How SCOTUS was captured, why it matters, and how to set it free.
And so the third branch of government—the judicial branch, historically the weakest of the three—has become the first to succumb to fascism. The venerable institution that produced John Marshall and Louis Brandeis, Oliver Wendell Holmes and Thurgood Marshall, Earl Warren and Sandra Day O’Connor, has been usurped by drunks, lechers, cultists, and pompous dimwits, all in thrall to dark money-funded Catholic radicals for whom democracy is nothing more than a speedbump on the road to despotism.
How we got here—the grievous errors committed by effete Democrats, the ruthless pushing of advantages by amoral Republicans, the apathy by most Americans—can be explained in a single tweet by the legal scholar Laurence Tribe:
Following is an index of pieces published at PREVAIL—one by Moscow Never Sleeps, the rest by me—on the hostile takeover of the Supreme Court:
How the Court Was Captured
October 29, 2021
Lewis Powell was the sort of soulless corporate attorney who pops up as the bad guy in political thrillers. He thought that Ralph Nader’s insistence that cars have seat-belts was the gateway to a Great Leap Forward into Communism. He believed corporations were people; heck, some of his best friends were corporations. As a lawyer, his principal client was the Tobacco Institute, the infamous cigarette lobby. He hated the New Deal, and the myriad ways it made life better for most Americans, because his heart was black as the tar from a pack of unfiltered Camels. Curiously, he is the second most popular Lewis Powell in Google search—right after the Lewis Powell who plotted with John Wilkes Booth to assassinate Abraham Lincoln.
Fifty years ago this August, at the behest of his friend and neighbor, a bigwig with the conservative U.S. Chamber of Commerce, Powell wrote a memo that was, among other things, the genesis of the rightwing takeover of the judicial branch of government. The Powell Memorandum became a blueprint for obscenely rich libertarians—most of them heirs to great family fortunes, not the original fortune-amassers—who invested their vast resources in charitable foundations, think tanks, and political organizations that would collectively transform Bedford Falls America into what we have today: the United States of Pottersville.
How did this happen? I asked Senator Sheldon Whitehouse, author of Captured: The Corporate Infiltration of American Democracy and this week’s guest on the PREVAIL podcast. “First of all, big industries learned about regulatory capture,” he told me. “If you’re a big industry and you’ve gotten in the habit of taking over—‘capturing,’ so called—regulatory agencies so that they do what you want instead of what the public wants, and then one day you look over at the Supreme Court and say, ‘Hey, why don’t we do that to the Court?’ Powell gave them a gameplan long ago, and they’ve steadily been building on this.”
Regulatory capture is, basically, the subversion of a regulatory body by the industry it’s supposed to be regulating. Just as Wall Street prefers its own people at the SEC, and Big Pharma would rather the FDA be run by pharmaceutical industry lobbyists, so the Kochs and Bradleys and Scaifes of the world want a Supreme Court composed of justices sympathetic to their dog-eat-dog, fuck-the-poor, let-the-planet-burn worldview.
And they don’t want any surprises.
Lewis Powell was nominated to the Supreme Court soon after writing his memo; on the bench, he was exactly as advertised. But a previous Richard Nixon nominee, Harry Blackmun, strayed from the Cult of Big Business as soon as he donned his black robe, and wound up one of the Court’s most liberal justices; most famously, he authored the majority opinion in Roe v. Wade. Later, Gerald Ford’s nominee, the bow-tied John Paul Stevens, turned out to be not just a liberal, but one of the longest-serving justices in history—a disaster for the right-wingers.
A GOP president nominating a liberal justice? This was not a mistake conservatives wanted to repeat. And by and large, they haven’t—by design. Indeed, the Federalist Society exists, in the main, to make sure that this jurisprudential apostasy never happens again. One of its primary functions is to vet potential Supreme Court nominees, weeding out potential Blackmuns and Stevenses and grooming more Powells. You might be the member of a creepy religious cult, or an angry drunk with Nats tickets and a yen for perjury, or a pompous Henry Kissinger fanboy—FEDSOC doesn’t care, as long as your life-was-better-in-the-good-old-days-before-the-40-hour-work-week-and-worker-safety-regulations ideology is pure.
Not that any of this is new. The Federalist Society, led by the enigmatical oenophile Leonard Leo, has had outsized influence over judicial nominees for decades. But during the Former Guy’s administration, FEDSOC leveled up.
“Bad went to worse when Trump came in and said, ‘I’m going to take all of my Supreme Court nominees from the Federalist Society,” Whitehouse explained. “First, there’s not a country in the world that hands off its judicial nomination process to a private organization. Trump did. And at the same time, the private organization was taking—guess what—huge, anonymous donations. . . Sure enough, the donors behind the operation controlled the turnstile, and they started feeding pre-approved judges through the turnstile, which is exactly how you would capture a regulatory agency.”
The result of these machinations is a Supreme Court where six of the nine justices are Federalist Society darlings. That makeup is not representative of the country as a whole, and the Court in general lists far to the right of the American mainstream. Like a captured regulatory agency, today’s SCOTUS doesn’t answer to We The People, but to the dark money forces that control the turnstile.
The blinking-red danger with a captured Court is that, while we attribute its capture to the “Koch Brothers” as a sort of metonym, we don’t really know who captured it. I mean, it’s called dark money for a reason. Donors don’t have to disclose their identities, not in any meaningful way. For all we know, the Federalist Society is funded by the Vnesheconombank, or the Saudi Arabian Public Investment Fund, or the Princely House of Thurn und Taxis. Are we sure Leonard Leo gets his financing from the Kochs, and not Semion Mogilevich? Regulatory capture of the Supreme Court seems like a mobster move; shouldn’t the onus be on Leo to show that he’s not bankrolled by the Bratva?
Leo the Cancer
February 26, 2021
The words “Opus Dei” immediately call to mind that insipid Da Vinci Code novel. If you managed to avoid reading the book, perhaps you saw the film adaptation, in which Tom Hanks is chased around Europe by a self-flagellating albino monk (played by the lead actor from WandaVision). Both book and movie are beyond parody, not least in their treatment of Opus Dei. As Anthony Lane notes, in his deliciously arch review of the film, “the Catholic organization [is] so intensely secretive that its American headquarters are tucked away in a seventeen-story building on Lexington Avenue.”
And yet, as ridiculous as The Da Vinci Code is, perhaps Dan Brown was onto something. It cannot be a coincidence that so many movers and shakers in the Washington legal community are connected to a radical brand of Catholicism that is more Urban II than John XXIII.
Along with former Attorney General Bill Barr, Leonard Leo served on the board of the Catholic Information Center, the Opus Dei stronghold on K Street in Washington, a few blocks from the White House. As such, he must have been influenced by the former head of that same Catholic Information Center, Father C. John McCloskey, an Opus Dei priest. McCloskey was singlehandedly responsible for recruiting a number of powerful Washington insiders to…well, if not Opus Dei proper, then something decidedly un-American. This is from a piece Charles P. Pierce wrote for the Boston Globe in 2003, about a group he termed “The Crusaders”:
There is a glow to the priest when he talks…He is talking about a futuristic essay he wrote that rosily describes the aftermath of a “relatively bloodless” civil war that resulted in a Catholic Church purified of all dissent and the religious dismemberment of the United States of America.
“There's two questions there,” says the Rev. C. John McCloskey 3d, smiling…“One is, Do I think it would be better that way? No. Do I think it’s possible? Do I think it’s possible for someone who believes in the sanctity of marriage, the sanctity of life, the sanctity of family, over a period of time to choose to survive with people who think it’s OK to kill women and children or for—quote—homosexual couples to exist and be recognized?
“No, I don’t think that’s possible,” he says. “I don't know how it’s going to work itself out, but I know it’s not possible, and my hope and prayer is that it does not end in violence. But, unfortunately, in the past, these types of things have tended to end this way.
“If American Catholics feel that’s troubling, let them. I don’t feel it’s troubling at all.”
Leo’s chums Antonin Scalia and Clarence Thomas
Thomas’s wife, Ginni Thomas
Louis Freeh, the shady former FBI Director
the late conservative columnist Robert Novak
Sam Brownback, the hapless former governor of Kansas
Lawrence Kudlow, Trump’s former economic adviser
Robert Hanssen, the FBI officer who was a KGB double agent
Leo was in his thirties when Pierce wrote that article, a Beltway neophyte, but he was already on the varsity team. In addition to the surviving members of the McCloskey group, his current circle of devout Catholics includes:
SCOTUS justices John Roberts, Sam Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett
former White House Counsel Pat Cipollone
Trump Homeland Security attorney Ken Cuccinelli
Roger Severino (who while director of the HHS Office of Civil Rights authored some despicably anti-LGBTQ policies)
Roger’s wife, Carrie Severino, head of the Judicial Crisis Network and Leo’s most trusted lieutenant
Mick Mulvaney, former White House Chief of Staff
Don McGahn, former White House Counsel, who stayed on the job as long as he did to facilitate the appointment of Leo-approved judges
George Conway & Kellyanne Conway
Let me be clear: my first inclination, when I see the words “Opus Dei” and a list of notables, is to dismiss the whole thing as conspiracy-theory poppycock. I don’t know how many of these people are actually members of that prelature, and it really doesn’t matter. Call it what you like, but those individuals really are all connected, and really were influenced by the hateful, authoritarian thinking of Father McCloskey. Read those names again. Whether this is Opus Dei proper or something less formal, that is a fantastic amount of power concentrated in a very small circle of like-minded people.
Whatever eschatological hocus-pocus McCloskey may have subjected these individuals to, none of them seem like exemplary human beings to me—including McCloskey himself. The priest was removed from his position at the Catholic Information Center when he was accused of sexual misconduct by a woman involved with the Center—not the first time he was booted out of a plum job. Opus Dei paid almost a million bucks to settle the case, and insists that the former priestly powerbroker now “suffers from advanced Alzheimer’s…[and] has not had any pastoral assignments for a number of years and is no longer able to celebrate Mass, even privately.” The point is, the moral leader of Leonard Leo’s little group is a handsy man of the cloth who cost Opus Dei $977,000 because he couldn’t keep his mitts off a parishioner, and who in the aftermath of the scandal wound up banished from public life.
Leo and his pals are proponents of what Bill Barr, in his controversial 2019 speech at Notre Dame, called “the traditional moral order,” which is a euphemism for “hatred of the LGBTQ community, atheists, agnostics, Muslims, immigrants, and women.”
But is it a moral order, though? A moral order that tolerates pedophiles? What’s really going on here?
Radical Catholics hate two things above all else: abortion and homosexuality. Morality debates aside, to staunchly and categorically oppose either one is to deny reality. If abortion is criminalized, abortions will still take place—in back alleys, illegally, by fly-by-night abortionists who only work for cash. Likewise, the criminalization of gay and Lesbian sex will not stop gays and Lesbians from hooking up—it will just drive the liaisons underground.
And maybe, just maybe, that’s the real objective.
Before Roe, abortions were one of the many illicit services on offer by crime syndicates. The mob took a cut of the fee, and, more importantly, knew who was getting secret abortions—and who the fathers were. The abortion racket, in other words, was a means to collect both money and dirt.
Sodomy, to use the grotesque legal term, has been decriminalized for two generations, but men having secret rendezvous with other men is still used as kompromat. Off the top of my head, I can name three current Republican Senators, a former Republican governor, a former Democratic governor, and the businessman father of a member of Trump’s inner circle who are rumored to dabble covertly in gay sex. How much more power would a potential blackmailer have over these people if man-on-man action was expressly illegal?
And who, you ask, collects dirt on prominent individuals, for the purpose of coercion and blackmail? Creatures of the underworld: crooks running rackets, and spooks working assets. . . .
Could it be that the push to criminalize abortion and homosexuality is intended to make the job of the foreign intelligence services easier? Could it be that the hardline views of “true believers” like Leonard Leo and his Torquemada besties are being manipulated to advance that agenda? Could it be that spies are exploiting the fact that a desperately insecure, status-conscious, nouveau riche sycophant who is emphatically not the smartest person in the room believes that he is?
It’s an interesting hypothesis, for sure. But let’s take them at their word. McCloskey spoke of a “relatively bloodless” civil war, because it’s “not possible” for people like him to peacefully coexist with the LGBTQ community. Barr seeks a “traditional moral order.” Leo, as Jay Michaelson succinctly explains in The Daily Beast, believes that “most of the New Deal and administrative state are unconstitutional, that corporations have free speech and free religion rights, that women and LGBT people are not ‘protected classes’ under constitutional law, and that there is no right to privacy implied by the due process clause of the Constitution (i.e., banning abortion, contraception, and gay marriage are entirely constitutional).” These are men who abhor the Equality Act, which passed the House yesterday.
The thing is, those are unpopular positions, reviled by a healthy majority of Americans. Given the demographic trends in the United States, the only way “The Crusaders” can bring the country back to the pre-New Deal era is to establish a dictatorship—a radical Catholic caliphate. Leonard Leo and his buddies are clearly okay with that. The Opus Dei prelature, remember, has its origins in Fascist Spain. The Roman Catholic Church is very much a top-down organization—what the Pope says goes. The late J. Peter Grace, the head of the American Knights of Malta, whose Maine compound Leo now owns, was involved in Operation Paperclip, and was therefore okay with Nazis. Steve Bannon wants to destroy the American administrative state. By eradicating the barrier between Church and State, Leo seeks the same outcome. Ultimately, what these men want is, to put it mildly, inconsistent with democracy. That makes them particularly dangerous.
The War on Women Gets Medieval
December 14, 2021
Some individuals in the fascistic “pro-life” bubble are so indoctrinated in the movement’s cynical propaganda, and so sure of their own moral and intellectual superiority, that they are completely divorced from reality. Alexandra DeSanctis Marr, a visiting fellow at the Ethics & Public Policy Center and a writer at the National Review who covers abortion, a week ago tweeted, “Abortion is never medically necessary to save a woman’s life.” Could a maternal-aged human possessed of ovaries, uterus, and Fallopian tubes, who writes about abortion for a living, really not know that this statement is complete horseshit? Did DeSanctis Marr dispatch this communiqué for propaganda purposes, to push back on Sotomayor’s “life of a woman” quote? Is she yet another rightwing provocateur, trolling the other side? Or is she just daft?
I don’t know, but DeSanctis Marr’s use of the word “never” means that a single, solitary example of abortion saving a woman’s life invalidates her assertion. Jennifer Gunter, an OB/GYN and a columnist for the New York Times, countered with: “Maybe you should consult an expert. I’ve personally saved lives doing abortion. But you could also ask Savita Halappanavar’s family as she died because she was denied an abortion.”
The example Gunter cites is, sadly, accurate. Halappanavar did indeed die because she was denied medical treatment, on account of Ireland’s medieval (and since lifted) ban on all abortions. As the New York Times explains:
Dr. Halappanavar, a dentist, and her husband, an engineer, were living in Galway in 2012 and preparing for the birth of their first child. That all changed when, 17 weeks pregnant, Dr. Halappanavar went the hospital with back pain on Oct. 21 and doctors said she was having a miscarriage.
Dr. Halappanavar was told that her fetus would not survive—but that she could not be given an abortion, her husband said. Ireland, she was told, is “a Catholic country,” and it would be illegal to terminate the pregnancy while the fetus still had a heartbeat, her husband said.
After being repeatedly refused an abortion, she waited days until the heartbeat stopped. The contents of her womb were removed on Oct. 27. By then she had an infection, and she died of septicemia the following day.
The replies to Dr. Gunter’s tweet are full of examples of women whose lives were saved by the procedure. I personally know women who would have died if they didn’t have abortions. So do you—even if you don’t realize it. (Just because it isn’t talked about at dinner parties doesn’t mean it doesn’t happen, fellas). The simple truth is that without the abortion option, women are denied access to the full complement of medical treatments that can potentially save their lives. All the more reason that the decision to terminate a pregnancy should be made by the pregnant woman and her doctor—not some state legislator with a Y chromosome.
It pleases “pro-life” ideologues to think that abortion is a simple, neat, black-and-white issue. It’s not. The real world is messy. There are as many reasons to have an abortion as there are women who get one. Furthermore, even a cursory study of any country that has had strict bans on abortion show that these bans are harmful to women—as Savita Halappanavar found out in Ireland, and hundreds if not thousands of others learned in Romania and elsewhere (including in this country, during the dark “coat hanger in a back alley” days).
Again: the Supreme Court has denied pregnant women a potentially life-saving medical treatment. This is like if SCOTUS denied men who suffer from erectile dysfunction access to Viagra and Cialis—except that a guy’s life is not in danger if he can’t get it up. It’s more like the Court preventing a syphilitic from having an injection of Benzathine penicillin G: We know this will save you, but we can’t allow it because Jesus. Sucks to be you.
The United States is supposed to be a progressive country, the land of the free. Whole Women’s Health v. Jackson hurtles us back to the Dark Ages. Whatever the so-called “pro-life” propaganda claims, bans on abortion are not morally good; they are barbaric. Lives are not being saved by banning abortion; to the contrary, women in Texas will die because of it. Not that Kavanaugh, Thomas, Alito, Barrett, or Gorsuch give a rat’s zygote.
“The Court should have put an end to this madness months ago, before S.B. 8 first went into effect,” Sotomayor wrote in her dissent. “It failed to do so then, and it fails again today.” Madness is exactly the right word. But hey, at least Clarence Thomas and Scalito can still fill dick-pill prescriptions, should the need ever, ahem, arise.
As harmful as this ruling is to pregnant women in Texas, Whole Women’s Health v. Jackson is just the beginning. Even Federalist Society darling John Roberts, the eunuch Chief Justice, is concerned. As Dahlia Lithwick writes in Slate,
The chief justice, concurring in part and dissenting in part, pointed out that the purpose of the law was to evade judicial review: “Texas has passed a law banning abortions after roughly six weeks of pregnancy. That law is contrary to this Court’s decisions in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. It has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.” He describes Texas’ enforcement mechanisms as “an array of stratagems, designed to shield its unconstitutional law from judicial review.”
Roberts closes with what looks a lot like yet another flashing red light signaling the end of democracy:
The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
Again, the Leonard Leo/dark money interlopers on the bench do not care. Because the America they envision does not align with the America that the majority of Americans wants, their only recourse is tyranny. Is there anything more totalitarian than the State forcing a woman to carry to term a pregnancy she does not want?
How to Fix the Court: C is for Clarence
December 1, 2020
By Moscow Never Sleeps
Clarence Thomas has been on the court for 29 years. In that time he has performed three judicial functions: First, he is a reliable conservative vote who has rarely if ever swung to join a liberal foursome. Second, he has avoided anything remotely resembling original and persuasive legal writing that might ever be used by anyone in lower courts as precedent in any gray area of Constitutional law. And third, once he had confirmed his title as the dumbest reactionary on the Court in the Twentieth Century, he graciously stepped aside to allow Samuel Alito to claim that honor for the Twenty-First. In other words, he is a total load.
But Uncle Thomas is also 72 years old, and if we don’t get him off now, the next Republican President in four to eight years will replace the sullen houseplant with someone more plutonian than Kavanaugh and younger than Barrett. By 2025, Candace Owen could finish college, get a JD, and be fast-tracked into a robe before her 38th birthday. If the prospect of some cynical GOPOTUS cooperating with some McConnell ghola to ramrod a talentless muppet through to a lifetime appointment on the highest court in the land reaching as far into the future as 2060 strikes you as absurd, remember: in the 1990s, MadTV and The Simpsons had us all rolling on the floor with dystopian “President Trump” jokes.
So, the Big C has to go. As earlier explained, impeachment is not an option. First, unless (a) almost 20 Republican Senators cross the aisle on a third-rail vote or (b) the Democrats somehow (without the other side noticing) magically find 25 new azure-blue states to be admitted overnight to the Union, we just are never going to get a two-thirds Senate vote to remove anyone the GOP considers essential to maintaining power.
Second, for most of the last three decades, Thomas has kept his mouth shut and his hands to himself. Whether by terror, shock collar, good sense, or plain old age, he left his Tone-Lōc days back in the Eighties. In any case, as Susan Collins and Lisa Murkowski proved two years ago, the Senate’s policy on sexual harassment remains “boys will be boys.”
Third, although his wife Virginia Lamp’s loud political activism is a conflict of interest that can be seen from space, everyone in Washington on both sides of the aisle lives in that particular glass house. No elected Democrat older than AOC is going to want to bring the spousal exception up for debate in Congress. Remember Tipper Gore and the PMRC?
Yes, Article II is specific on the topic of bribery, and yes, his wife’s PACs are a thing, but it’s still a hard case to make. Clarence Thomas was a troglodyte long before people started paying his wife to cheer him on. In fact, he is quite possibly the most consistent jurist in the history of the Court: he always votes for the cops against the suspect, for the wealthy against the employee, for the Republican political machine against the disenfranchised voter, and for the church against taxpayers who don’t want to support parochial schools. (About the only surprise to come from three decades of Justice Thomas’s black-and-white judicial worldview is that he proves that there really is such a thing as antidisestablishmentarianism.) C-Dog doesn’t rule this way because he’s getting paid off: this is already the best judge he was ever going to be.
But what is to be done? As stated above, Thomas is 72 and in no apparent physical distress. He isn’t just going to resign from the Brethren and a lifetime federal sinecure as a political favor to Biden. There’s no benefit in for him, and there’s few career opportunities awaiting a man of his very proscribed skill set. Abe Fortas and Arthur Goldberg shucked their robes after brief stints in the 1960s and were soon back in pinstripes earning big city partner money, but I doubt even Republicans are willing to pay for Justice Thomas’s actual legal skills. Once upon a time, men left the Nine to run for high office, but (a) these judges had a previously successful electoral record, (b) they generally lost anyway, and (c) Clarence Thomas’s political skills are probably still no better than his pickup lines were in his EEOC days.
But Justice Thomas might take “Retired” (aka “Senior” for lower federal judges) status. As a Retired justice, he is still technically on the Court—without a vote in Conference, but with full salary and benefits, a reduced staff, the authority (but not the obligation) to hear Circuit cases in emergencies, and the right to make money on the side teaching, speaking, or writing. Justices Brennan and Douglas did that, and even if Clarence Thomas clearly does not have the writing ability of either of the Big Bills, he can still take honoraria to fulminate like Cleveland Brown to a bunch of white robes at the true dangers of a secular legal system. It’s an honorable exit.
The question becomes, how to get Clarence Thomas to voluntarily trade great power and job security for nearly no power but the same job security plus the potential of a bit more cash? The answer is ugly and beautiful at the same time. Like all wives in America, even the ones who pretend to be handmaids, Virginia Lamp Thomas is morally convinced that she is smarter than her husband. Like most wives in America, she is probably right. She’s an educated lawyer, a devout Catholic, a competent writer and speaker, and a conservative white woman who by virtue of her husband’s melanin count is untouchable on charges of racism when she pillories black Democrats. If Washington were a D&D game, she would be a +22 Polemicist. Ginni got game.
She also has managerial responsibility over PAC money in her various organizations with alt-right dogwhistles like “Liberty” and “Heritage” in their names. Maybe she’s not raising it, or spending it, or even getting any of it paid to her. Not actually relevant. Under various lobbying, tax, and corporate laws, as a founder, spokesperson, and/or manager of these 501(c)(3) money sponges, she is still potentially personally responsible for how these tax-exempt First Amendment cash machines record and report their finances.
In class, this is usually where the quiet kid who sits in the back raises her hand and tries the following gotcha: “But Professor, didn’t you say a few paragraphs ago that nobody in Washington wants to start an argument in Congress about how the town’s spouses run the money machines?” Yes, I did. Emphasis on the phrase “an argument in Congress.” Not all federal cases need be made public, and the best pressure is applied in private, where exposure can still be avoided.
Tax-free status is a benefit provided by law, but it requires regular documentary proof that the organization claiming it is legally entitled thereto. Fraud in those documents is a felony, and the person guilty of that felony can be anyone involved in their preparation above a simply clerical level. If the Treasury and Justice Departments of the Biden/Harris Administration do not do a top-down review of the monetary reporting practices of every PAC from the NRA down to the National Association To Protect Televangelists From Tax And Fraud Laws, then I did not get the President I voted for, and neither did you.
This is low-hanging fruit from the point of view of the Executive Branch. Federal inquiries into tax-exempt status are initially an administrative matter. They generally do not require warrants or probable cause. Investigators don’t need to suspect a crime has been committed, nor do they have to argue in court that they had a credible suspicion of wrongdoing. The IRS uses a very simple algorithm when deciding on which filers to audit: whomever the fuck they want to. It’s not appealable in court as long as the investigators remember not to leave the Post-It saying “Political Enemy Persecution File” on the audit letter.
If Joe and Kamala and whatever AG and Treasury Secretary they can get confirmed past McConnell are not complete wimps, Clarence Thomas’s wife’s PACs are ripe for a randomly selected audit. Maybe the feds will find irregularities in the exemption paperwork. Maybe they won’t. Maybe they’ll find income that the Lamp-Thomas household failed to declare or pay taxes on. Maybe they won’t. Maybe they’ll find income that the good judge should have declared on his annual financial disclosures. Maybe they won’t. Sometimes the purpose of a factual investigation is not finding evidence of wrongdoing, but of reminding people that rules are subject to verification. Or, as Zen philosophers might say, the real goal of a journey is not the destination, but the people you intimidate along the way.
I give Ms. Thomas one year, maybe two, of having her political babies smeared in private—but not so privately that the word doesn’t get out to her donors that her kaffeeklatsches are toxic and that she can’t be put on any boards for failure of investigation metastasis—before she puts zvei und zvei together and gets vier. She will go full-on Karen to her assistant manager of a husband, or she might use her wiles. In either case, the substance of the complaint will sound like this:
“Yes, I know I’m getting scrutiny only because I’m married to you. Yes, it’s horribly unfair to us and to the conservative movement as a whole. No, the heat is not going to stop for at least the next four to eight years, by which time I’ll be a senior citizen. No, I’m not expecting you to start wearing dashikis and a natural to the job and start sympathizing with your country cousins on briefs. No, I’m not going to resign from public life; if that Jan Brady Opus Dei Earth Mother You Think I Don’t Know You Spank It To can be a judge, I’m damn sure not going to be a frumpy hausfrau in this town just because I use your last name for the real Catholics. No, the opportunity to play bridge every Thursday night with Ashley Kavanaugh and the other Court wives is not why I went to law school and spent three decades as your conduit to the Federalist Society. No, I’m not telling you that you HAVE to go on Retired status, take the heat off me, and probably triple our household income on speaking fees alone just because I’ve stuck by you since that Sooner sister whose name you still call out in your sleep dimed you out. I’m just saying we can figure out how to use it to advance our common cause. No, we aren’t getting divorced, even if the Pope is considering Vatican III, so I look forward to making your coffee every morning for the rest of your life. Anyway, think it over. I’m sure you’ll make the right choice. And I’ll be right behind you, whatever you choose.”
The time between that conversation and when Clarence Thomas dials John Roberts at home will be measured in units generally used in subatomic physics.
Ed. note: Ginni’s participation in the insurrection makes the scenario laid out by Moscow Never Sleeps that much easier—if the effete Dems find their nerve.
Photo credit: Fred Schilling, Collection of the Supreme Court of the United States.