To those who have followed the Federalist Society closely since its triumphs at the Supreme Court last year, the symposium’s focus on law and democracy may hardly seem incidental. Since its founding in 1982, the Federalist Society has championed “judicial restraint,” the notion that judges should limit their roles to interpreting the law as written, leaving the actual business of lawmaking to democratically elected legislatures.
That approach made sense for conservatives when they still saw the federal judiciary as a liberal force dragging the country to the left. But now that conservatives have secured a solid majority on the Supreme Court — and voters in several red states have soundly rejected hard-line positions on abortion — a spirited debate is underway within the Federalist Society about the wisdom of deferring to democratic majorities as a matter of principle.
“From our very beginning, there has been an aspect of judicial restraint, and there has been an aspect that it’s judges’ jobs to interpret the Constitution, that whatever it says, that’s what they should do — and those two can sometimes be in tension,” said Eugene Meyer, the president and CEO of the Federalist Society, as we spoke in a back hallway of the conference center.
I had only convinced Meyer to talk with me after assuring him and his handler that I wasn’t trying to back him into answering specific questions about cases currently before the Court. At Meyer’s urging, the society goes to great lengths to emphasize that it does not take policy positions or weigh in on the merit of individual cases, preferring to present itself as a neutral “debate society” for right-leaning intellectuals. But Meyer — who tapped his foot nervously as we spoke — was willing to admit that the intellectual winds within the organization are shifting.
“I think it would be fair to say there’s been some movement over time more in the direction of interpreting the Constitution and less in the direction of pure judicial restraint,” he told me.
When I spoke with Blackman, the South Texas college of law professor, he noted that that tension was neatly captured in two of the headline-making decisions that went conservatives’ way in the last Supreme Court term. In the Dobbs ruling, the conservative majority returned the abortion question to state legislatures, limiting federal judges’ role in determining the extent of reproductive rights. Meanwhile, in New York State Rifle & Pistol Association, Inc. v. Bruen — which struck down a New York law that set the requirements for individuals to receive a concealed carry permit for handguns — the Court trumped the decision of a state legislature in favor of conservatives’ preferred reading of the Second Amendment.
But Blackman’s assessment of the direction of the intellectual current within the Federalist Society was even more candid than Meyer’s.
“The norm that judges be restrained and moderate — that ship has sailed,” he said.
Inside the cavernous ballroom, panelists took turns delivering their remarks from a raised platform, flanked on one side by the American flag and by Texas’s Lone Star Flag on the other. The symposium is hosted by a different law school every year, but there was a tidy irony to the fact that this year’s gathering landed in Texas, which has in recent years seen an influx of conservative transplants seeking refuge from what they see as the insanity and insipient authoritarianism of Blue America.
“Democracy is what philosophers call an ‘essentially contested concept,’” said Daniel Lowenstein, a professor of law emeritus at UCLA and an expert in election law, during a panel on Friday evening. “Differences that seem on their surface to concern the meaning of the word ‘democracy’,” he added, are actually struggles to advance particular and controversial political ideas.”
What democracy does not mean, Lowenstein argued, was “plebiscitary democracy,” or simple rule by democratic majorities. Citing the Federalist Papers — the namesake of the Federalist Society — Lowenstein suggested that governance based on simple mathematical majorities would enable “tyrannical domination of the minority by the majority.”
“The assumption that only plebiscitary forms [of government] are truly democratic is fallacious, and should be openly and directly contested by those supporting non-plebiscitary positions,” he added.
Behind me, somebody whispered, “We’re a republic, not a democracy” — a tongue-in-cheek slogan that some conservatives have adopted as a way to slyly signal their approval of minority rule.
Later on in the same panel, Joel Alicea, a law professor at the Catholic University of America, diagnosed the apparent threats facing American democracy today — political violence, abuses of governmental power, and attempted election subversion, to name a few — as symptoms of a deeper malaise.
“At this point in our society, we can’t even agree whether somebody is a man or a woman, which suggests such a deep level of moral disagreement — and even disagreement about basic notions of reality — that to say that society can form an overlapping consensus is hopelessly naive,” he said. Faced with such fundamental disagreements, Alicea said that citizens have to choose between two approaches: coercion, suppressing disagreements by means of force and intimidation, or conversion, the slow and steady work of persuading people who disagree with you to come around to your point of view.
Sunday, March 19, 2023
Last Call For A Supreme Crackdown, Con't
The Revenge Of 2008, Con't
A coalition of midsize US banks asked federal regulators to extend FDIC insurance to all deposits for the next two years, arguing the guarantee is needed to avoid a wider run on the banks.
“Doing so will immediately halt the exodus of deposits from smaller banks, stabilize the banking sector and greatly reduce chances of more bank failures,” the Mid-Size Bank Coalition of America said in a letter to regulators seen by Bloomberg News.
The collapse this month of Silicon Valley Bank and Signature Bank prompted a flood of deposits out of regional lenders and into the nation’s largest banks, including JPMorgan Chase & Co. and Bank of America Corp. Customers spooked by the bank failures were taking refuge in firms seen as too big to fail.
“Notwithstanding the overall health and safety of the banking industry, confidence has been eroded in all but the largest banks,” the group said in the letter. “Confidence in our banking system as a whole must be immediately restored,” it said, adding that the deposit flight would accelerate should another bank fail.
The expanded insurance program should be paid for by the banks themselves by increasing the deposit-insurance assessment on lenders that choose to participate in increased coverage, the group proposed.
The MBCA’s letter was sent to the Federal Deposit Insurance Corp., the Comptroller of the Currency, the Federal Reserve and Treasury Secretary Janet Yellen.
Sunday Long Read: Black Lives Still Matter
Roland Harris has watched his son die a hundred times. The final moments of his life, documented in thermal video captured by a police aircraft, are burned into Harris’s mind: His teenage son, Jacob, steps out of a car. He runs from the police. Two seconds later, officers open fire. Bullets pierce his heart, lungs, and intestines. He falls to the ground, bleeding. Police pepper him with rubber bullets, hitting him in the face and backside. He is dying in the dirt. Then officers sic a dog on him.Over the last few years, Harris has slowly uncovered more information about his son’s killing and the events that preceded it. But every answer brings new questions.
It has been more than four years since a Phoenix police officer killed Jacob Harris, on January 11, 2019. The police department has since drawn a federal investigation into its use of deadly force. But Roland Harris’s fight for accountability has only left him with more questions: Why did police delete text messages from the night of his son’s shooting? Why are Jacob’s friends the only ones who have been held responsible for his death? How could anyone say his son’s killing was justified?
Harris’s search for answers has come at a significant cost: The cop who killed his son has demanded he pay the officer’s $40,000 attorney fees after a federal court dismissed Harris’s wrongful death suit. Harris and his wife split, in part, he says, because he became so deeply consumed by getting justice for his son.
“I have a void in my life that is never going to be filled,” Harris said. “Even when justice is served. It’s going to hit even harder. Because then I’ll have to focus on him not being here.”
Police have fought Harris every step of the way, refusing to disclose even basic information about his son’s death. It took six months for the department to release its report on the shooting, and even then, it only did so after he threatened to sue, Harris said. Police still have not returned his son’s belongings. But Roland Harris’s memories of Jacob remain fresh.
“He was all about family,” Harris said. “He helped me watch over his little sister, Leilani. He helped me coach little league basketball.”
Jacob had wavy black hair and a big, bright smile, accentuated by the peach fuzz that had grown in above his lip and on his chin. He was on the shorter side—5 feet 4—and he had his dad’s broad shoulders and stocky build. He also had Roland Harris’s brown, almond-shaped eyes.
Harris said that when Jacob found out he was going to be a father at 16 years old, he got a full-time job, finished school, and helped to support his girlfriend and child.
Before long, Jacob and his girlfriend had another child. “Now his daughter will never know him,” Harris said. “His son will never know him. They will grow older. Those memories will fade. And they’re gonna forget him. All because of a trigger happy cop. His kids are never gonna get any father-daughter dances. He’s never gonna get a chance to walk his daughter down the aisle.”
In an effort to piece together what happened on the night of Jacob Harris’s death, The Appeal reviewed more than 6,000 pages of records from official investigations into the shooting, the county attorney’s prosecution of Harris’s friends, and the civil suit Roland Harris filed against the city of Phoenix. The Appeal interviewed nine people involved with the case and also obtained police personnel records, transcripts of police radio traffic, and aerial surveillance footage of the shooting.
Prior to publication, The Appeal sent the Phoenix Police Department a detailed list of statements that would appear in this story. A spokesperson for the department did not answer any questions and offered only a brief response stating that the court had dismissed Harris’s suit.
“The case is now on appeal to the 9th Circuit court where you can find the court file,” the spokesperson wrote.
Law enforcement officials in Phoenix—including Kristopher Bertz, the officer who killed Jacob Harris—have justified the shooting by saying they feared Harris intended to shoot them. But records obtained by The Appeal show that multiple officials have made inconsistent or false statements about the circumstances surrounding the shooting. Even Bertz’s own accounts of that night have differed slightly. Aerial surveillance footage of the incident shows Harris running away. And a judge in the criminal case against Harris’s friends has stated unequivocally that Harris did not turn toward Bertz.
Police records also raise serious questions about the department’s conduct prior to the shooting. Officers had been surveilling Harris and his friends for over 12 hours at the time, believing them to be connected to a string of store robberies. Though police had many opportunities to stop the group throughout the day, they ultimately chose to sit by and watch a robbery occur. Police didn’t seek to apprehend Harris and his friends until after they drove away. But police never alerted the group to their presence or gave them a chance to pull over. Instead, officers escalated directly to a high-risk maneuver that forced the car to a stop. That’s when Harris ran out and was shot.
Despite these issues, the Phoenix Police Department investigated Bertz and determined that he acted in accordance with department policy in killing Harris. The Maricopa County Attorney’s Office declined to prosecute, stating that Bertz did not “commit any act that warrants criminal prosecution.”
Instead, prosecutors decided to hold Harris’s three friends responsible for his death. Arizona’s “felony murder” law allows people to be charged with murder if someone dies during the commission of a felony, even if they did not cause the death. Jeremiah Triplett, Sariah Busani, and Johnny Reed—ages 20, 19, and 14 at the time—were in the car with Harris on the night of his death. The Maricopa County Attorney’s Office charged them with first-degree murder, armed robbery, kidnapping, and burglary.
Busani and Triplett were held in jail on a $1 million bond for three years before finally being sentenced in the first few months of 2022. Busani was sentenced to 10 years in prison. Triplett was sentenced to 30 years. Reed was held on a $500,000 bond and was ultimately sentenced to 15 years in prison—more years than he had even been alive at the time of his arrest.