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Dahlia Lithwick and Mark Joseph Stern | The Political Genius of John Roberts
 Dahlia Lithwick and Mark Joseph Stern, Slate Excerpt: "There will be much discussion in the coming weeks about the revelations of the Supreme Court's COVID-19 term. But perhaps more than anything, we should focus on the battle of the titans that has played out this year between Chief Justice John Roberts and President Donald Trump."
It certainly has been a years-in-the-making enterprise: Roberts was showing signs of Trump fatigue by the end of last term, and his frustration with the Trump administration’s shoddy lawyering and outright fabrication was evident by the time he thwarted the administration’s effort to put a citizenship question on the census. It’s fair to say that, by this time last year, it was clear that Roberts, a lifelong conservative, was—unlike many other lifelong conservatives—not prepared to give up on every institutional and ideological principle he’d ever held in order to cater to Trump’s tempestuous whims. It was also clear that Roberts would prioritize public respect for the Supreme Court and the federal judiciary over short-term gains for the president and his party.
This was evident not just in his judicial writing. It was clear when he punched back at Trump’s claims that there were “Trump judges and Obama judges” and again when he defended judges (including Merrick Garland) in his annual state of the judiciary report this past winter. It was also why we didn’t think Roberts would rush to intervene dramatically in the impeachment process. Whereas almost everyone in Trump’s ambit has proved to be almost fanatically transactional in their dealings with the president, credit Roberts with being principled. He has signaled, time and again, that he cares more about keeping the court above reproach, and above partisan politics, particularly in an election year.
To that end, the term-ending financial documents decisions are a masterwork. Both Mazars and Vance read as resounding victories for centuries-old principles about the limits of presidential immunity and Congress’ legitimate authority to conduct executive oversight. Both were interpreted as blistering losses for Donald Trump by Donald Trump. Yet they will compel the lower courts to dither and squabble in ways that will keep the financial documents away from the public eye for months if not years. You can’t help but admire the deftness of Roberts’ ability to simultaneously split the baby, persuade both sides that they won, and score indisputable points for judicial supremacy, all while also achieving nothing immediate.
As he did last year, Roberts played the term perfectly. He won the headlines and preserved the big lofty principle about big lofty courts, while still making it impossible for any of us to know exactly how corrupt the Trump family really is. But the stakes were even higher this year, as the election loomed over the term. And so he set out to ensure that the Supreme Court would not become a campaign issue. The chief justice knows that both parties treat the court like a piñata, trying to convince their respective bases that they know how to smack the most candy out of it. He knows Democrats remain traumatized over Merrick Garland’s stymied appointment and Justice Brett Kavanaugh’s toxic confirmation. During the Democratic primary, multiple top-tier candidates pronounced themselves open to adding seats to the Supreme Court to counter Republicans’ judicial chicanery. Roberts also knows that a term filled with one conservative triumph after another would only have given Democrats ammunition to run against the court, framing it as a partisan institution in need of reform. That didn’t happen.
By contrast, it’s difficult to imagine mainstream Democrats seriously endorsing court packing after the term that just wrapped. A majority of the justices pushed back against the Trump’s administration’s attempt to deport Dreamers, to write LGBTQ people out of civil rights laws, and to shield the president from all congressional scrutiny. They halted, at least for now, the effort to regulate abortion clinics out of existence. And they shoved off an attempt to expand the scope of the Second Amendment.
Some of these cases divided the justices along ideological lines, with Roberts joining the liberals. But others attracted the votes of Trump appointees Kavanaugh and Neil Gorsuch, who would’ve added fuel to the argument that the court is partisan had they consistently sided with the president. Yes, there were sweeping conservative decisions as well, including startling assaults on the separation of church and state. But these cases were wonky and complicated, not straightforward Citizens United–style routs that upended American democracy. The blockbusters that dominated the news were with compromises (as in the subpoena cases) or outright liberal wins (as in the LGBTQ discrimination case). And the average Democratic voter probably won’t know or care that, say, Roberts has laid the groundwork for more restrictions on abortion while striking down Louisiana’s TRAP law.
The irony of Roberts’ endless maneuvering is that preventing the court from appearing political requires him to act politically. Brokering compromises behind the scenes, manipulating the docket to keep hot-button cases far away from the court, forecasting the impact of each decision on the election—these are inherently political acts undertaken to convince public that the court is apolitical. They are not the traditional duties of a jurist. But Roberts is the exceedingly rare judge who understands politics, not just party politics, but also how to behave politically. And he recognizes that, as Americans lose faith in the other two branches of government, he has the power, and perhaps the responsibility, to cultivate more trust in the court.
It is worth asking what Roberts will do when Trump eventually leaves office, when the chief justice no longer feels obligated to prove that his court is not beholden to a singularly toxic and corrupt president. To be sure, this chief justice is still not a centrist; he remains devoted to his pet projects, like blessing voter suppression laws or hobbling administrative agencies’ independence. It is simply too soon to tell whether Roberts has really had a change of heart on hot-button issues like reproductive rights and LGBTQ equality, or if he just wants to shield his court from political blowback in an election year. While he has succeeded in lowering the temperature of SCOTUS discourse, he has not clearly abandoned those conservative crusades that evoked so much Democratic outrage in the first place. Citizens United is still on the books. The Voting Rights Act in still in grave peril.
But if he has distinguished himself this term, it’s for steadfastly refusing to join in the abdication of conservative principles to the cult of Trumpism. The number of conservatives in public life who have stood up to the worst aspects of Trumpism—the xenophobia, the small-mindedness, the abject cruelty—has been vanishingly small. You may not agree with the chief justice’s views on race, religious liberty, or voting rights. But Roberts deserves credit not just for protecting his court from Trump, but also for positioning it to fight another day.
READ MORE  Elijah McClain died in the United States in August 2019; more than 2.7 million people have called for further investigation into his death. (photo: Family Handout)
What We Know About the Killing of Elijah McClain
Claire Lampen, The Cut Lampen writes: "McClain's family maintains that law enforcement's use of excessive force led to his death."  ast August, police officers in Aurora, Colorado, approached 23-year-old Elijah McClain as he walked home from a convenience store. The Aurora Police Department later said that a 911 caller had reported a “suspicious person” in a ski mask, and that when officers confronted McClain — who was not armed and had not committed any kind of crime — he “resisted arrest.” In the 15 minutes that followed, the officers tackled McClain to the ground, put him in a carotid hold, and called first responders, who injected him with ketamine. He had a heart attack on the way to the hospital, and died days later, after he was declared brain dead.
McClain’s family maintains that law enforcement’s use of excessive force led to his death. The officers, however, were subsequently cleared of wrongdoing, apparently on the basis of questionable body-camera footage and an allegedly inconclusive autopsy. McClain’s case has attracted renewed scrutiny amid national protests against systemic racism and the deadly tactics that police often deploy against Black people.
Here’s everything we know about Elijah McClain.
McClain was detained on his way home from picking up an iced tea for his brother.
Just after 10:30 p.m. on August 24, 2019, the Aurora Police Department received a call about a “suspicious person” wearing a mask and waving his hands. They dispatched three officers — Nathan Woodyard, Jason Rosenblatt, and Randy Roedema — who subsequently said McClain “resisted contact” and continued down the street.
According to McClain’s family, the 23-year-old had made a quick trip to the convenience store to pick up an iced tea for his brother. His sister later told a local ABC affiliate, Denver7, that McClain was wearing an open-face ski mask because he “had anemia and would sometimes get cold.” And although he was unarmed, simply walking home and, his sister said, listening to music, police say “a struggle ensued.” One officer accused McClain of reaching for his gun, and one put him in a carotid hold, which involves an officer applying pressure to the side of a person’s neck in order to temporarily cut off blood flow to the brain. “Due to the level of physical force applied while restraining the subject and his agitated mental state,” officers then called Aurora First Responders, who “administered life-saving measures,” according to a local NBC affiliate. Paramedics injected McClain with what they said was a “therapeutic” amount of ketamine to sedate him, while officers held him down.
McClain went into cardiac arrest on the way to the hospital, and was taken off life support on August 30. His family said at the time that he was brain dead, and covered in bruises.
Body-camera footage of the arrest did not come out for months.
Body-cam footage of the arrest does exist, although the ADP did not release it to the public until late November, months after McClain’s death. In the footage, an officer can be heard admitting McClain had done nothing illegal prior to his arrest; another accuses McClain of reaching for one of their guns. McClain, meanwhile, can be heard asking the officers to stop, explaining that they started to arrest him as he was “stopping [his] music to listen.” He gasps that he cannot breathe. He tells them his name, says he has ID but no gun, and pleads that his house is “right there.” He sobs, and vomits, and apologizes: “I wasn’t trying to do that,” he says. “I just can’t breathe correctly.” One of the officers can also be heard threatening to set his dog on McClain if he “keep[s] messing around,” and claiming he exhibited an extreme show of strength when officers tried to pin back his arms.
Very little of the officers’ protocol can be seen, however, because all of their body cams allegedly fell off during the arrest. But if you watch the video from about the 15-minute mark (warning: the footage contains violent and upsetting content), you’ll see someone pick up the body camera and point it toward McClain and one of the officers, before dropping it back into the grass. Around 15:34, one of the officers seems to say, “Leave your camera there.”
An autopsy initially listed McClain’s cause of death as “undetermined.”
McClain’s autopsy also raised questions. The Adams County Coroner announced in early November that it wasn’t clear whether his death had been an accident, or carotid hold–related homicide, or the result of natural causes. The coroner listed McClain’s cause of death as “undetermined,” but points to hemorrhaging in his neck and abrasions on different parts of his body. Noting that “an idiosyncratic drug reaction (an unexpected reaction to a drug even at a therapeutic level) cannot be ruled out” in reference to the ketamine dosage, the report’s wording seemed to pin responsibility on McClain himself.
“The decedent was violently struggling with officers who were attempting to restrain him,” it said, according to Denver 7 ABC. “Most likely the decedent’s physical exertion contributed to death. It is unclear if the officer’s action contributed as well.”
As Mari Newman, an attorney for McClain’s family, said at the time, though, “Whatever the report says, it’s clear that if the police had not attacked Elijah McClain, he would be alive today.”
And the officers involved were subsequently cleared of wrongdoing.
The APD placed Woodyard, Rosenblatt, and Roedema on paid administrative leave in the incident’s immediate aftermath. On November 22, Adams County prosecutors announced that they would not bring charges against the trio, who then returned to normal duty. According to the Sentinel, District Attorney Dave Young informed Aurora police chief Nick Metz in a letter that, “Based on the investigation presented and the applicable Colorado law, there is no reasonable likelihood of success of proving any state crimes beyond a reasonable doubt at trial. Therefore, no state criminal charges will be filed as a result of this incident.”
Metz subsequently called the officers’ threats to McClain “unprofessional,” and said that the comment had “been addressed with that officer through a written corrective action.” Newman, meanwhile, told the Sentinel: “If Aurora thinks this is appropriate policing, the community should be petrified. We are disappointed, but not surprised that once again, members of law enforcement will not [be] held criminally accountable for killing an unarmed Black man.”
As of July 3, only one of the officers had been fired, but not for their direct involvement in McClain’s death (see below); on June 13, however, the APD quietly reassigned Woodyard and Rosenblatt to “non-enforcement duties,” with Roedema following on June 20. The APD has not replied to the Cut’s request for comment, but a spokesperson intimated to Fox 31 Denver that concern for the officers’ safety motivated the decision. Department employees and city officials have recently received death threats, a spokesperson told CNN.
McClain’s case has attracted attention in recent weeks.
Despite local media coverage and some smaller rallies, McClain’s death did not receive widespread attention in the press — not until the killing of George Floyd sparked widespread protests against racially motivated police brutality. Since then, a Change.org petition demanding “Justice for Elijah McClain” has garnered nearly 2 million signatures. A surge in support as McClain’s name is shared on social media and at demonstrations has translated to thousands of emails and calls to D.A. Young’s office, plus hundreds of complaints filed with the police department. All the attention appears to be creating some actual change.
Although Young said last week that he has no intention of reconsidering the case, City Manager Jim Twombly agreed on June 9 to undertake an independent investigation of McClain’s death, pursuant to Aurora lawmakers’ request. “We have watched the events over the last several days and it has become clear that public trust has been eroded,” council members Allison Hiltz, Curtis Gardner, and Angela Lawson said in an email to Twombly. “We know that the status quo is no longer acceptable in our criminal justice system. Our community has experienced pain and as leaders it is our responsibility to take the first step in restoring public trust.”
Twombly initially appointed attorney Eric Daigle, a former police officer, to lead the review, a decision that prompted pushback from the city council.
“Unfortunately, an attorney with a long career in law enforcement that specializes in defending municipal police departments from liability claims doesn’t qualify, in our minds, as a neutral review,” the council said in a statement. Aurora mayor Mike Coffman then announced that Daigle’s contract had been terminated, and that he and the council will select a replacement.
Also on June 9, Aurora interim police chief Vanessa Wilson announced that officers would be banned from using carotid holds, and obligated to intervene when they see another officer use excessive force. They will also have to declare their intention to shoot before firing their guns. Additionally, two Aurora council members are seeking to make bans on chokeholds and carotid holds part of the city’s ordinance.
And now, the attorney general is investigating the case.
On June 25, Colorado governor Jared Polis signed an executive order to appoint the state’s attorney general, Phil Weiser, to investigate the case and, if the facts support prosecution, “criminally prosecute any individuals whose actions caused the death of Elijah McClain.”
“I was moved by speaking with Elijah’s mother and her description of her son as a responsible and curious child … who could inspire the darkest soul,” Polis said in a statement. “Elijah McClain should be alive today, and we owe it to his family to take this step and elevate the pursuit of justice in his name to a statewide concern.”
“As a father, my heart breaks for the McClain family,” Polis added. “All Coloradans should be safe walking home from the convenience store, or just being in their own neighborhoods listening to headphones. Unfortunately, I know that is not how many people — especially young people of color — feel in our state today, because I’ve heard it from them directly. We need to do a better job, and at a bare minimum, they deserve a thorough review of the case.”
On Wednesday, Coffman announced that the City Council would meet on July 6, for a vote to select a new independent investigator, now that Daigle has been removed.
One of the officers involved has been fired — in connection with an inappropriate photo.
On Friday, interim police chief Wilson announced that she had fired Rosenblatt and two other officers over their connection to photos taken at a memorial for McClain last October. Another officer, Jaron Jones, resigned on Tuesday.
In the images, Jones poses with his arm wrapped around officer Kyle Dittrich’s neck, a mocking imitation of the hold used on McClain. Both officers are smiling, while officer Erica Marrero grins over their shoulders. Rosenblatt did not participate in the photograph, but he did text back “haha” when someone sent it to him, according to the New York Times. On Friday, Wilson said that Rosenblatt was “being fired for his … utter inability to do the right thing here.” Wilson noted that Woodyard also received the pictures, felt “extremely disturbed,” and deleted them.
As for Dittrich and Marrero, Wilson added: “To even think about doing such a thing, it’s beyond comprehension, and it’s reprehensible. It shows a lack of moral values and integrity.”
“We know that there are cops that have integrity. They understand duty and they understand honor. These four don’t get it,” Wilson said. “They don’t deserve to wear badges anymore.”
Addressing the photos at a news conference on Friday, Newman, the McClain family’s attorney, drew a parallel “with the Jim Crow South, where white supremacists thought it was amusing to take pictures of themselves with lynched human beings.”
“That is exactly what we have seen now today,” Newman said. “It is not acceptable then, it is not acceptable now.”
McClain’s family and friends described him as extremely gentle and very kind.
McClain worked as a massage therapist, and taught himself to play both the guitar and the violin. According to the Sentinel, he often spent his lunch breaks at local animal shelters, putting on concerts for cats and dogs because he believed music would help soothe their anxiety. Those who knew him describe him as gentle: “I don’t even think he would set a mouse trap if there was a rodent problem,” his friend, Eric Behrens, told the Sentinel.
He often developed friendships with his massage clients, like April Young, who told the Sentinel: “He had a child-like spirit … He lived in his own little world. He was never into, like, fitting in. He just was who he was.”
“He was the sweetest, purest person I have ever met,” another of his friends and former clients, Marna Arnett, added. “He was definitely a light in a whole lot of darkness.” Arnett believes that, in addition to helping manage a chronic chill that McClain attributed to his anemia, wearing a mask helped him manage his social anxiety. “He would hide behind that mask,” Arnett said. “It was protection for him, too. It made him more comfortable being in the outside world.”
Speaking to CBSN Denver, his mother, Sheneen McClain, described her son as incredibly determined. “I thank God that he was my son because just him being born brought life into my world, you know what I mean?” she said. “I know he was giving life to other people too.”
READ MORE A vigil on Sunday for Summer Taylor, who died after being hit by a car during a protest in Seattle. (photo: David Ryder/Getty)
Drivers Are Hitting Protesters as Memes of Car Attacks Spread
Neil MacFarquhar, The New York Times MacFarquhar writes: "The driver of a red Toyota first stopped, then unexpectedly accelerated into a crowd of dispersing demonstrators in Bloomington, Ind., on Monday night, injuring two of them in the latest of a disturbing rash of vehicular attacks targeting protesters." READ MORE  Dr. Anthony Fauci. (photo: Alex Brandon/AP)
Dr. Anthony Fauci Says He Hasn't Briefed Trump in at Least Two Months, Despite Pandemic Resurgence
Nicholas Wu, USA TODAY Wu writes: "Dr. Anthony Fauci, the nation's top infectious disease expert, said Friday he has not briefed President Donald Trump in at least two months and not seen him in person at the White House since June 2, despite a coronavirus resurgence that has strained hospitals and led several states to pause reopenings."
Fauci told the Financial Times he was "sure" his messages were sent to the president even though the two have not been in close contact in the past several weeks.
The comments from the Trump administration's director of the National Institute of Allergy and Infectious Diseases came as Trump has been critical of Fauci and spoken openly about issues on which they disagree.
In a Thursday interview with Fox News' Sean Hannity, Trump said Fauci had "made a lot of mistakes" but called him a "nice man." Trump also said "most cases" of coronavirus would "automatically cure. They automatically get better."
Also in the FT interview, Fauci said Trump was incorrect in claiming 99% of coronavirus cases were "harmless" and may have conflated some statistics.
"I’m trying to figure out where the president got that number," Fauci said. "What I think happened is that someone told him that the general mortality is about 1%. And he interpreted, therefore, that 99% is not a problem, when that’s obviously not the case."
The fatality rate, or deaths divided by confirmed cases, is about 4.3%, according to Johns Hopkins University, though the death rate could vary and could be significantly lower if cases are undercounted because of the lack of testing. Close to 130,000 Americans have died as a result of the coronavirus, according to Johns Hopkins data, and coronavirus cases continue to rise across the country.
Close to 44,000 people are hospitalized with the coronavirus, according to the COVID Tracking Project's seven-day rolling average of hospitalizations.
Fauci responded to reports he had not appeared as often on television as he had earlier in the pandemic, saying his reputation for "speaking the truth at all times and not sugar-coating things" could be "one of the reasons why I haven’t been on television very much lately."
Asked in a Monday interview with "Fox and Friends" about Trump's claim that 99% of coronavirus cases were "harmless," White House chief of staff Mark Meadows said, "When you start to look at the stats and all the numbers that we have, the amount of testing that we have, the vast majority of people are safe from this."
"Outside of comorbidities" such as diabetes or hypertension, he added, the "risks are extremely low and the president’s right with that, and the facts and the statistics back us up there."
A large proportion of the American population has comorbidities that put them at a higher risk for severe coronavirus cases. The Centers for Disease Control and Prevention says more than 100 million Americans live with diabetes or prediabetes, and nearly half of Americans have high blood pressure. The prevalence of such conditions is higher in racial minority groups, which have been disproportionately affected by the coronavirus.
Fauci noted there was "extreme confusion" about the coronavirus' effects because it affected people so differently, telling the FT, "I have never seen a virus or any pathogen that has such a broad range of manifestations."
Fauci also said Americans' distrust of authority made it hard to combat the pandemic and find a vaccine.
He cited the nation's forefathers' "general spirit" of not trusting authority. The founders "had the guts to come by boat from Europe and wherever else," he said.
That spirit had been taken to an "extreme," he said, laying "the foundation for the anti-vaccine movement, that we don’t trust what the government is telling us. That is very, very problematic right now.”
READ MORE  The oath of allegiance during a naturalization ceremony for new citizens in Washington, Sept. 10, 2019. (photo: Amanda Andrade-Rhoades/The New York Times)
Trump Is Now Blocking Most of the Legal Paths to Immigrate to the US
Priscilla Alvarez and Catherine E. Shoichet, CNN Excerpt: "As the coronavirus spreads around the world, the Trump administration has steadily choked off most avenues for legal immigration to the United States - effectively shutting down the system that brings in hundreds of thousands of immigrants annually." READ MORE  A protester from the Papuan Students Alliance during a protest in support for the opening of the Free West Papua Campaign office in the Netherlands. (photo: Ylet Ifansasti/Getty)
How Black Lives Matter Inspired West Papua's Freedom Struggle
Febriana Firdaus, Jacobin Excerpt: "The people of West Papua have suffered decades of oppression and discrimination at the hands of the Indonesian state. Now they've drawn inspiration from the Black Lives Matter protests to mount popular resistance to yet another authoritarian clampdown." READ MORE  Lemurs in Madagascar on March 30, 2017. (photo: Mathias Appel/Flickr/National Marine Fishers Service)
Lemurs and Northern Right Whales Near Brink of Extinction
Jordan Davidson, EcoWatch Davidson writes: "A new analysis by scientists at the Swiss-based International Union for Conservation of Nature found that lemurs and the North Atlantic right whale are on the brink of extinction."
For lemurs, the analysis found that almost one-third of the species in Madagascar are critically endangered while 98 percent are threatened or worse, according to the IUCN's updated Red List of Threatened Species. The demise of lemurs is largely attributed to deforestation and hunting on the giant island off eastern Africa, conservationists said Thursday, as the AP reported.
To put that in numbers, instead of percentages, 33 lemur species are critically endangered, with 103 of the 107 surviving species threatened with extinction, according to the IUCN. The updated list now has 13 species pushed into the critically endangered category due to human activity.
The IUCN also says there were fewer than 250 mature North Atlantic right whales believed to be alive in 2018, marking a 15-percent drop since 2011. That number includes about only 100 breeding females.
"At the heart of this crisis is a dire need for alternative, sustainable livelihoods to replace the current reliance on deforestation and unsustainable use of wildlife," Grethel Aguilar, IUCN's acting director general, said in a statement, as The Washington Post reported. "These findings really bring home the urgent need for an ambitious post-2020 biodiversity framework that drives effective conservation action."
At the end of June, one dead whale was spotted off the coast of New Jersey. That six-month-old calf had been struck several times on the head, suggesting one or possibly two vessel collisions, according to The New York Times. Increasingly, collisions with ships, entanglements in fishing nets, and underwater noise pollution are killing the animals, which rely on echolocation for basic activities such as feeding, communicating and finding mates, as The Washington Post reported.
The North Atlantic right whale also faces an increased threat from the climate crisis. The IUCN says that warming ocean temperatures have likely pushed the species' main prey species further north during summer, into the Gulf of St. Lawrence, where the whales are more exposed to accidental encounters with ships and also at high risk of entanglement in crab-pot ropes.
The whale's preferred home, in the Gulf of Maine's deep waters, has warmed nearly 9 degrees Fahrenheit since 2004, faster than 99 percent of the world's oceans for much of this century, according to The New York Times.
The prospects are bleak for the North Atlantic right whale now that President Trump lifted restrictions on commercial fishing in a key area of the whale's habitat.
"Unless we act decisively to turn the tide, the next time the right whale's Red List status changes it will be to 'extinct,'" Jane Davenport, a senior attorney for Defenders of Wildlife, said in a statement, as The Washington Post reported.
The deaths of 30 Atlantic right whales were confirmed as human-caused between 2012 and 2016, according to the IUCN report, and all but four were caused by entanglement in fishing gear.
Peter Corkeron, a senior scientist at the New England Aquarium, has chronicled the gruesome deaths of right whales as the director of the National Oceanic and Atmospheric Association's research program for large whales for the last decade. He told the New York Times he feared the listing would have little impact.
"A lot of the dynamic was bad anyway, and under Trump it just got worse," Corkeron said. "People are terrified to do anything about right whales at the moment."
The update to the "Red List of Threatened Species" shows that 32,441 species are threatened out of a total of 120,372 on the list.
"We have to take bold and rapid action to reduce the huge damage we're doing to the planet if we're going to save whales, frogs, lemurs and ultimately ourselves," said Tierra Curry, a senior scientist at the Center for Biological Diversity, as The Washington Post reported. "We really can do all of these things, but we need world leaders to stand up and do them."
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