“It is perhaps cliche by now to say the chief justice was the star of the term,” said Washington lawyer Lisa S. Blatt, who appears frequently before the Supreme Court. “But there is no other way to see the term: The chief took the bull by the horns and did what he wanted.”
What event reversed Roberts’s fortunes? The election of Donald Trump in the fall of 2016. What might make Roberts’s dominance short-lived? The reelection of Donald Trump in 2020.
In fact, if you assumed the next two justices to leave the court would be its oldest, both liberals, the best-case scenario for a long Roberts reign would be the election of presumptive Democratic presidential nominee Joe Biden. His replacements presumably would maintain the status quo.
Being the Supreme Court’s median justice — they hate being called the “swing” vote — requires more than smarts and savvy. It involves being in the right place at the right time — there must be four justices more consistently conservative and four justices more consistently liberal.
Justice Sandra Day O’Connor occupied that spot for years. After she left, and was replaced by someone more conservative, it was Justice Anthony M. Kennedy who took over the spotlight. And when Kennedy retired in 2018 and was replaced by someone more conservative, his protege Brett M. Kavanaugh, it was Roberts’s turn in the middle.
What was the Roberts court in name became the Roberts court in reality.
But remember back to 2016. Justice Antonin Scalia died unexpectedly in February, seemingly giving President Barack Obama the chance to make his third Supreme Court nomination, after Justices Sonia Sotomayor and Elena Kagan. Obama’s choice would have broken the court’s stalemate of four conservative justices chosen by Republican presidents and four liberal ones picked by Democrats.
Senate Majority Leader Mitch McConnell (R-Ky.) gave conservatives at least a temporary reprieve. He said he would not allow the Senate to vote on a replacement and that the choice should be up to the next president. He made good on that promise, denying Obama’s nominee, federal appeals court judge Merrick Garland, so much as a hearing.
Still, few thought at the time the next president would be Trump. Most believed the next justice would be Garland or perhaps an even more liberal choice nominated by Democratic presidential candidate Hillary Clinton.
A Democratic-appointed justice would have given the left a dominant role on the court for the first time in half a century. When the court split ideologically in such a makeup, Justice Ruth Bader Ginsburg – released this week from a hospital after a possible infection – would be the senior member in the majority, not the chief justice.
We know how that turned out. Partly because he convinced evangelicals and other conservatives they could trust him on Supreme Court picks, Trump won three and half years ago. He chose Colorado federal appeals court judge Neil M. Gorsuch for the Scalia opening. And then Kavanaugh to replace Kennedy.
The moves secured the court’s conservative majority, and it put Roberts in the middle.
Roberts’s alliances with the liberals this term made headlines: Together, they formed the five-justice majorities to stop the Trump administration from dismantling the Obama-era program protecting undocumented immigrants brought to the United States as children, and to cool the expectations of the antiabortion movement by striking down a restrictive Louisiana law.
But Roberts was also in the majority in all three cases that religious conservatives won this term. In fact, the court split 5-to-4 in 13 cases this term; Roberts and the other conservative justices made up the majority in nine of them.
Still, Trump was not happy with his high-profile losses on the Deferred Action for Childhood Arrivals (DACA) program and his claim he was untouchable by congressional investigators and a New York prosecutor. “Do you get the impression that the Supreme Court doesn’t like me?” the president tweeted at one point.
Trump emphasized the point last week during an interview with Fox News’s Sean Hannity as a reason he should be reelected.
“We need more judges and more justices,” Trump said. “You see that now with the Supreme Court, more than ever. And the next president — I’ve had two — and the next president is going to be able to pick two, or three, or one or whatever.”
Roberts is a savvy operator on the court no matter its makeup. Still, he remains in the central position so long as the justices a reelected Trump would replace are conservatives or the ones a President Biden would replace are liberals.
There’s something to be said, of course, about reinforcing the status quo if either Trump or Biden are able to replace justices with like-minded successors. Gorsuch and Kavanaugh were roughly 30 years younger than the men they replaced and should have lengthy tenures on the court.
Conservative activists pushed the idea this spring that either Justice Clarence Thomas, 72, or Justice Samuel A. Alito Jr., 70, might be ready to leave, giving Trump the chance to name younger conservatives. McConnell has sworn to fill any opening that might arise.
Anything can happen, but the term came and went without such announcements.
On Election Day, the two oldest justices will be liberals: 87-year-old Ginsburg and Stephen G. Breyer, by then 82. Neither seems particularly eager to leave.
If Biden gets to replace either, he would be maintaining the status quo, albeit with a new generation. Roberts’s place would seem to be secure.
But if Trump chooses a replacement for one of the liberals, it would shift the court’s center of gravity considerably, and it would diminish Roberts’s influence. As the most influential of five conservatives, the court moves to the right only as far and as quickly as the chief justice wants. The scenario changes if he were one of six.
So add this as another reason the coming presidential election will be so crucial.
But keep something else in mind as well. Whether a president gets the chance to replace a Supreme Court justice is one of the least predictable events in American politics. And a justice’s decision to leave usually is more about the justice than who’s in the Oval Office.
As Supreme Court wise man Walter E. Dellinger once said:
“Generally, it is God who decides whether presidents get Supreme Court appointments.”
The U.S. set a single-day record with more than 70,000 new coronavirus cases. Hospitals in the Sun Belt are strained.
“In California, doctors are shipping patients as many as 600 miles away because they can’t be cared for locally. In Florida, nurses are pouring in from out of state to reinforce exhausted medical workers. And in Texas, mayors are demanding the right to shut down their cities to avoid overwhelming hospitals,” Griff Witte and Rachel Weiner report. “Officials on Thursday said they are concerned that hospitals will soon hit a breaking point if the trajectory of ever-growing caseloads doesn’t change. ‘We can withstand a surge. We can withstand a disaster. But we can’t withstand a disaster every single day,’ said Jason Wilson, associate medical director of the emergency department at Tampa General Hospital … The peril was reflected in another grim set of data out of Florida on Thursday, with the state reporting a record number of deaths — 156 — and adding nearly 14,000 new cases, its second-highest total to date. …
“In California, the worst effects were being felt in the southern part of the state, where hospitals have been inundated. In Imperial County, along the Mexican border, doctors have been so overwhelmed by the demand for care that they have begun sending patients as far away as Sacramento — a nine-hour drive to the north. … With medical staff in especially short supply, Defense Department teams began deploying to California hospitals this week to bolster the response. Florida Gov. Ron DeSantis (R), meanwhile, requested that the Federal Emergency Management Agency send 1,500 nurses. Across Texas, mayors of some of the state’s biggest cities — including Houston and Austin — are so worried about staffing needs at local hospitals that they have asked for the authority to reimpose stay-at-home orders."
Nebraska, Utah and Oregon each shattered yesterday their previous single-day records of cases. The total number of infections nationwide topped 3.5 million, with at least 135,000 deaths, per our tracker.
- Georgia Gov. Brian Kemp’s (R) administration went to court seeking to block Atlanta from enacting new restrictions and requiring residents to wear masks. A week ago, Mayor Keisha Lance Bottoms (D) reverted to Phase 1 guidelines, pushing restaurants to close dining rooms and requiring masks. More than 100,000 Georgians have tested positive. (Atlanta Journal-Constitution)
- An outbreak shut down Florida’s emergency operations center. An official said 13 people working there tested positive. (Isaac Stanley-Becker)
- Texas Gov. Greg Abbott (R) said “there is no shutdown coming” as the state recorded 10,457 new cases. "People are panicking, thinking I'm about to shut down Texas again," he said. "The answer is no. That is not the goal. I've been abundantly clear." (Texas Tribune)
- The Democratic National Convention in Milwaukee has shrunk dramatically and has been rebranded under the slogan “Convention Across America." While originally expected to draw 50,000 people, planners expect as few as 300 to show up – including media, security and DNC staff. Last evening, convention planners sent an email telling all members of Congress and delegates to stay away from the convention. All party business meetings will be conducted online. (NYT)
- Utah parents, in two meetings that featured few masks and little social distancing, protested a mandate by Gov. Gary Herbert (R) that would’ve had their kids in masks and demanded in-person classes this fall. There are more than 30,000 confirmed cases in Utah, and the number is rising. (Salt Lake Tribune)
- Some teachers are saying they’d rather quit than risk their health by going back to school. “I love, love my job. But this? It’s not worth my life,” a Dallas-based teacher told BuzzFeed News. “I’m scared of getting sick and bringing it to my family. I’m scared of dying. I think we all are, you know?”
- Private schools are reopening even as the public schools in the same towns are not. In Honolulu, for example, public schools will remain closed but not the private Punahou, which has an on-staff epidemiologist. (NYT)
Quote of the day
“When [Trump] says open, he means open in full, kids being able to attend each and every day in their school. The science should not stand in the way of this,” said White House press secretary Kayleigh McEnany on reopening schools. The U.S., she said, is an “outlier” among Western nations in terms of getting kids back to school. "The science is on our side here and we encourage for localities and states to just simply follow the science, open our schools."
Americans’ views of Trump’s handling of the pandemic have deteriorated significantly, a new Post-ABC News poll found.
“The Post-ABC poll shows 38 percent of Americans approve of his handling of the outbreak, down from 46 percent in May and 51 percent in March. Sixty percent disapprove, up from 53 percent in May and 45 percent in March,” Scott Clement and Dan Balz report this morning. “More than half of the public—52 percent—now disapproves ‘strongly’ of Trump’s handling of the outbreak, roughly double the percentage who say they strongly approve of his efforts … A 63 percent majority say it is more important to try to control the spread of the virus even if it hurts the economy, up from 57 percent in May. … On the subject of masks, nearly 8 in 10 Americans say they are wearing one most or all of the time when they come close to others in public.”
The disappearance of covid-19 data from the CDC’s website spurred an outcry.
“On the eve of a new coronavirus reporting system this week, data disappeared from a Centers for Disease Control and Prevention website as hospitals began filing information to a private contractor or their states instead. A day later, an outcry — including from other federal health officials — prompted the Trump administration to reinstate that dashboard and another daily CDC report on the pandemic,” Lena Sun and Amy Goldstein report. “And on Thursday, the nation’s governors joined the chorus of objections over the abruptness of the change to the reporting protocols for hospitals, asking the administration to delay the shift for 30 days. In a statement, the National Governors Association said hospitals need the time to learn a new system, as they continue to deal with this pandemic. The governors also urged the administration to keep the information publicly available."
A document prepared for the White House coronavirus task force suggests 18 states are in the ‘red zone.’
That means “they had more than 100 new cases per 100,000 population last week. Eleven states are in the ‘red zone’ for test positivity, meaning more than 10 percent of diagnostic test results came back positive,” the Center for Public Integrity reports. "The document has been shared within the federal government but does not appear to be posted publicly. Dr. Ashish Jha, director of the Harvard Global Health Institute, said he thought the information and recommendations were mostly good. ‘The fact that it’s not public makes no sense to me,’ Jha said Thursday. ‘Why are we hiding this information from the American people? This should be published and updated every day.’”
The White House warned that the next stimulus package “must” include Trump’s payroll tax cut proposal.
“Trump’s renewed push for a payroll tax holiday comes as Senate Majority Leader Mitch McConnell (R-Ky.) prepares to unveil legislation next week that he hopes will launch negotiations on the next major coronavirus bill. Key Republican senators have been cool to the idea of a payroll tax cut in the past, partly because it only helps workers who are actually employed. Congress has rebuffed Trump’s previous demands for a payroll tax cut for individuals, instead approving a round of checks to individual Americans as part of the $2 trillion Cares Act in March,” Erica Werner and Jeff Stein report. “But now, as Congress and the administration prepare to write what will probably be the last major coronavirus spending bill before the November election, Trump is again demanding a payroll tax cut. He and some allies view the policy as an effective way to stimulate the economy and quickly give workers a boost.”
Russian cyberspies are trying to steal vaccine research, security officers in the U.S., Britain and Canada said.
“The hackers, who belong to a unit known variously as APT29, ‘the Dukes’ or ‘Cozy Bear,’ are targeting vaccine research and development organizations in the three countries, the officials said in a joint statement. The unit is one of the two Russian spy groups that penetrated the Democratic Party's computers in the lead-up to the 2016 presidential election,” Ellen Nakashima, William Booth and Amanda Coletta report. “Officials did not divulge whether any of the Russian efforts have been successful, but, they said, the intention is clear. ‘APT29 has a long history of targeting governmental, diplomatic, think tank, health-care and energy organizations for intelligence gain, so we encourage everyone to take this threat seriously and apply the mitigations issued in the advisory,’ said Anne Neuberger, cybersecurity director for the U.S. National Security Agency. Moscow has denied the allegations."
Seema Verma, a top health official, violated federal contracting rules.
“Verma, head of the Centers for Medicare and Medicaid Services within the Department of Health and Human Services, brought in high-paid contractors from June 2017 to April 2019 to provide strategic communications advice to boost her personal profile,” Yasmeen Abutaleb reports. “The inspector general’s finding details how Verma leveraged personal and political relationships to award personal contracts for work that should have been done by government employees, adding that the agency ‘paid some questionable costs.’”
Facing backlash, USA Today said an op-ed by White House trade adviser Peter Navarro attacking Anthony S. Fauci didn’t meet standards. “Navarro’s response echoed comments made to other news outlets in recent days,” wrote editorial page editor Bill Sternberg, alluding to talking points critical of Fauci circulated by White House aides. “We felt it was newsworthy because it expanded on those comments, put an on-the-record name to the attacks on Fauci, and contradicted White House denials of an anti-Fauci campaign.” But the piece, he said, “did not meet USA TODAY’s fact-checking standards” because of factual errors with “several of Navarro’s criticisms of Fauci.” (Jeremy Barr)
D.C. health officials are voicing concern as the region’s caseload grows.
“The District, Maryland and Virginia reported an additional 1,602 coronavirus cases, which is in line with the region’s seven-day average — a number that had bottomed out near 900 cases before a reversal. Leaders in the region are monitoring the increasing caseload with an eye on avoiding spikes seen in other states,” Julie Zauzmer and Dana Hedgpeth report. “D.C. Health Director LaQuandra Nesbitt said three measurements in the city are cause for concern: the rate of transmission, a caseload that is not declining and a high prevalence of cases seemingly unconnected to one another, rather than traceable to one cluster of infections.”
- The D.C. health department will now announce July 31 whether schools will be allowed to reopen in the fall, or if they will need to go entirely virtual. (Perry Stein)
- The Nationals are exploring alternatives to Nationals Park because of D.C.’s virus regulations. The main reason for the uncertainty is players, coaches and staff have to quarantine for 14 days if they are exposed to the novel coronavirus, per the city’s health protocols. The District is unwilling to bend that requirement for the Nationals, Jesse Dougherty and Dave Sheinin report.
The Washington team
Fifteen former female Redskins employees said they were sexually harassed during their time at the club.
“A few months after Emily Applegate started working for the Washington Redskins in 2014, she settled into a daily routine: She would meet a female co-worker in the bathroom during their lunch breaks, she said, to commiserate and cry about the frequent sexual harassment and verbal abuse they endured,” Will Hobson and Liz Clarke report. “Applegate is one of 15 former female Redskins employees who told The Post they were sexually harassed during their time at the club. The other 14 women spoke on the condition of anonymity, citing a fear of litigation because some signed nondisclosure agreements with the team that threaten legal retribution if they speak negatively about the club. The team declined a request from The Post to release former female employees from these agreements so they could speak on the record without fear of legal reprisal. This story involved interviews with more than 40 current and former employees and a review of text messages and internal company documents.
“Team owner Daniel Snyder declined several requests for an interview. Over the past week, as The Post presented detailed allegations and findings to the club, three team employees accused of improper behavior abruptly departed, including Larry Michael, the club’s longtime radio voice, and Alex Santos, the team’s director of pro personnel. In a statement, the team said it had hired D.C. attorney Beth Wilkinson and her firm, Wilkinson Walsh, ‘to conduct a thorough independent review of this entire matter and help the team set new employee standards for the future.’ … The allegations raised by Applegate and others — running from 2006 to 2019 — span most of Snyder’s tenure as owner and fall into two categories: unwelcome overtures or comments of a sexual nature, and exhortations to wear revealing clothing and flirt with clients to close sales deals. …
“None of the women accused Snyder or former longtime team president Bruce Allen of inappropriate behavior with women, but they expressed skepticism that the men were unaware of the behavior they allege. ‘I would assume Bruce [Allen] knew because he sat 30 feet away from me … and saw me sobbing at my desk several times every week,’ Applegate said. Allen, who was fired at the end of last year, did not reply to interview requests. While Applegate and others did not accuse Snyder of acting improperly with women, they blamed him for an understaffed human resources department and what they viewed as a sophomoric culture of verbal abuse among top executives that they believed played a role in how those executives treated their employees.”
Les Carpenter, who covers the team for The Post, drew five takeaways from the report, which comes as the team is in the midst of changing its historically problematic name.
The Trump presidency
Republicans fear that the Trump campaign’s shake-up won’t counteract his self-sabotage.
“Numerous Republicans and Trump allies said Thursday that the personnel overhaul — demoting Brad Parscale and replacing him with Bill Stepien as campaign manager — does little to address the main problem facing the struggling Trump campaign: the president himself and his chronically self-destructive behavior,” Ashley Parker, Josh Dawsey and Robert Costa report. “Even stalwarts are bewildered by what many view as his self-sabotaging actions, worried not only that he may lose in November but also that he will drag the rest of the party down with him. … Charlie Dent, a Republican former member of Congress from Pennsylvania, said Trump is out of step with members of his own party, especially those in tough reelection fights. … ‘There’s a total disconnect there between the president and those members in swing districts who need the president to be more measured and balanced — and, of course, he’s totally incapable of that,’ [he said]. Replacing the campaign manager, Dent continued, is hardly what most Republicans care about. ‘It’s all these other erratic and bizarre comments and behaviors that are causing the most heartburn for a lot of Republicans, by far’ Dent said.”
Mary Trump said she’s heard her uncle Donald use the “n-word” and use anti-Semitic slurs.
The president’s niece “made the allegation during an interview with MSNBC’s Rachel Maddow,” Colby Itkowitz reports. “Maddow asked whether that was a generalization about her family’s casual bigotry or if she’d actually heard her uncle use racist language. ‘Oh yeah, of course I did,’ Mary Trump said. ‘And I don’t think that should surprise anybody given how virulently racist he is today.’ … White House spokeswoman Sarah Matthews rebutted Mary Trump’s allegation. ‘This is a book of falsehoods, plain and simple,’ Matthews said ... ‘The President doesn’t use those words.’ … In the Maddow interview, Mary Trump also slammed her uncle’s response to the coronavirus, saying ‘he is dividing us at the expense of people’s lives.’ She then gave a dire forecast for the country if Trump is reelected in November. ‘I absolutely believe [it] would be the end of the American experiment,’ she said.”
Mary Trump’s book is making big numbers. It has sold a staggering 950,000 copies by the end of its first day on sale, Simon & Schuster said, marking a new record for the publisher. (CNN)
The Supreme Court dealt a blow to felons in Florida seeking to regain their right to vote. The court declined to “overturn a federal appeals court’s decision that blocked some Florida felons’ eligibility to participate in elections — a major blow to efforts to restore voting rights to as many as 1.4 million people in the battleground state,” Amy Gardner and Lori Rozsa report. “Three liberal justices noted their dissent, with Justice Sonia Sotomayor writing that the court’s order ‘prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.’”
Mike Pompeo said protesters and the mainstream media are attacking the American way of life.
The secretary of state said “the American way of life and its founding principles are ‘under attack,’ focusing his criticism on voices in the mainstream news media and protesters who have torn down statues of historical figures. Speaking as he unveiled the first report of the Commission on Unalienable Rights, Pompeo said the events roiling the United States are antithetical to the nation’s ideals. Both Pompeo and the 60-page report … said property rights and religious freedom are the foremost unalienable rights,” Carol Morello reports. “Pompeo had harsh criticism for the New York Times’s 1619 Project, on the history of American slavery, saying its underlying message was that ‘our country was founded for human bondage.’ … He also criticized protesters who have yanked down statues across the country, many of them erected in honor of Confederate officers in the Civil War but also enslaving founders of the nation. … ‘This is a dark vision of America’s birth. I reject it. It is a disturbed reading of history. It is a slander on our great people. Nothing could be further from the truth!’ [he said]. …
“Controversy has swirled around the commission since its creation. Its 11 members are predominantly professors and scholars. They include three women, one African American, one Asian, a rabbi and the president of a Muslim liberal arts college. Seven members are white men. … Some human rights groups immediately criticized Pompeo’s remarks and the report. … Rob Berschinski, vice president of policy for Human Rights First, said Pompeo is trying to recast American foreign policy in line with his personal religious and political views.”
In Portland, Department of Homeland Security officers cracked down on protesters.
“Federal officers responded to one late-night demonstrations downtown by using gas, smoke and impact munitions to press protesters away from two federal buildings. The confrontation between federal officers and protesters came hours after interim DHS Secretary Chad Wolf arrived in Portland to meet with federal law enforcement officials,” Oregon Live reports. “Wolf had issued a statement condemning the actions of some protesters during the seven weeks of demonstrations in Portland and referring to them as ‘lawless anarchists.’ Wolf said local and state elected leaders are failing to address the protests, which have continued for 50 straight nights since late May. … Oregon Gov. Kate Brown and Portland Mayor Ted Wheeler were among the elected leaders who called on federal officers to leave Portland. Both said they had no plans to meet with Wolf while he was in the city and Wheeler said he would decline if asked. Brown called the deployment of federal officers ‘blatant abuse of power by the federal government.’ ‘This political theater from President Trump has nothing to do with public safety,’ she said.”
George Floyd’s killing has already prompted some police departments to ban neck holds.
“At least 26 of the nation’s 65 largest police departments have banned or strengthened restrictions on the use of neck restraints since [Floyd’s death], a Post analysis shows,” Ted Mellnik, Kevin Schaul and Kimberly Kindy report. “A Post survey of the 65 largest U.S. police departments found 40 prohibit chokeholds in their use-of-force policies, while 38 prohibit carotid holds in those policies. These formal rules list the tactics and techniques officers may or may not use on suspects under various scenarios and can be critical tools in holding officers accountable. The survey examined the policies of the largest U.S. police departments by population served. Together, these departments serve almost 64 million Americans — about 20 percent of the nation’s population.”
The FBI is investigating Wednesday’s Twitter hack.
“The FBI will lead a federal inquiry into the hack, it said in a statement Thursday. Gov. Andrew M. Cuomo (D) directed New York state to start a probe of the incident, saying the hack is ‘deeply troubling’ particularly in light of the approaching elections,’” Rachel Lerman reports. “A law enforcement official … said that the hackers do not seem to have been working for a foreign government and that the breach seemed all about getting money. ‘This was not a hack of Biden’s campaign,’ the official said. ‘Or of Elon Musk. This was all about a fraud scheme and not about trying to turn the political winds in a certain direction.’”
Social media speed read
The White House held an event that involved removing weights from a red truck:
The event didn’t involve many masks:
White House press secretary Kayleigh McEnany criticized the Chicago mayor, and she clapped back:
And here’s how McEnany organizes her notes:
Videos of the day
Stephen Colbert joked that Trump can’t fully remove Brad Parscale from the campaign because “he’s the one who knows where the states are”:
Seth Meyers said firing your campaign manager this close to the election is like “a jockey jumping off his horse in the home stretch and deciding to run the rest of the way”: