The Low Bar with Sam and John
And you thought the debate was bad. Crack a bottle of "Beyond A Reasonable Stout" and read on...
So I was hanging out at the local bar, as y’all know I’m wont to do, and the regular crowd shuffles in.
Because they famously crave the common touch, Supreme Court Jesters Justices Sam Alito and John Roberts plant their bums on the stools next to me, like they do every Tuesday here at Marbury & Madison’s, the oldest, yet strangely least-frequented drinking establishment in Salina, Kansas.
Sam wears his usual: flowing Papal robes, which both me and John privately think are a little affectatious and tend to keep the other patrons at a distance, not so much because of anti-Catholicism, mind, just the very healthy small-town aversion to getting drawn into an interaction with a complete nutter.
He unrolls his gilded copy of Michael Warren Davis’ definitive “What is the perfect Catholic cocktail?” and, after musing a moment, orders a Pink Gin, whispering the requisite “No homo” under his breath afterward.
John lets slip a small head-shake and calls for his usual glass of wine. (I kid him sometimes that he needs to invent the Roberts Two-Step: two shot glasses, the first is just bitters, the second is water and Rohypnol. He never laughs.)
“So, Jimmy, what’s good?” John asks. (I’ve been coaching him on normalcy. It’s not going well.)
“It’s June, John. You guys are dropping another payload of nukes on democracy this month, so not a lot.”
Brookville, Kansas 2/13/10 photo by me
Sam sips his gin, shivers with ecstatic divine communion or something, checks over his shoulder to make sure that Martha-Ann isn’t watching, and then says, “Oh, bullshit! You whiny libs always catastrophize. What’s your beef today?
“I work for a living, Sam. I haven’t had time to go through it all. But your Garland v. Cargill1 ruling was absolute horseshit. Fucking Clarence—”
“Fucking Clarence.” They both intone.
“Why do you even let him--?”
“Look,” says John, “you’ve read the coverage about his gifts over the years, right?”
“Don’t insult me. Of course.”
“Well, the fact is…he pays us.”
“You’re shitting me.”
“Straight up,” Sam proudly chimes in. “Dude made $4 mil just in gifts. That’s double his court salary over the past 20 years. He slips the five of us envelopes when he’s really got a hard-on for something.”
I bang my head on the bar.
“But it’s cool now!” Sam insists. “We had Kavanaugh legalize it in Snyder.2 Clarence just asks for the case, John gives it to him, then he hands us these ‘gratuities.’ It’s all legal.”
“Y’all gonna get matching Section 666 tattoos to celebrate?” I ask.
Sam doesn’t laugh. I’d quit picking on him, but I have no other power.
“John, doesn’t it bug you even a little that your whole project for stewarding the legitimacy of the Court is going down in flames? AP-NORC poll just out shows that 70 percent of us think you guys just push ideology instead of calling ‘balls and strikes.’”
Sam butts in, the gin taking effect. Fucking lightweight.
“Yeah, seventy percent of you! The fake Americans who don’t understand the Constitution and want to live in some gay space Communism or something. Look at the numbers for Republicans!”
“The only people who count?”
“Damn straight, libtard! The rest of you can suck it.”
“Wow, Sam, you should get that stitched on a flag or something.”
He tries to get fighty, but his robes get tangled.
“Now, Sam, let’s be dignified,” says John. “Look, Jim, I hear what you’re saying, and it concerns me a great deal. Sam’s understandably upset ever since that reporter secretly recorded him and Martha-Ann"—Sam flinches slightly—“under false pretenses. Dirty pool, very dirty pool.”
“Baseball, billiards. You love your spheroid metaphors, John. How about a wrecking ball? Can we talk about Alexander?3 Talk about a Roberts Two-Step!”
“Hey, now…” John begins.
“No, I don’t want to hear it. You damn well know that you’re raw-dogging democracy. I’m a land grant college dropout who sweeps floors for a living, and I can see that much!”
“Nonsense!” Sam pipes up. “Alexander is perfectly in keeping with Rucho.”
“Bite me, you sophistic tool. Rucho was an offense to God and man. You fuckers gave the green light to one-party rule in every state in the union. You didn’t have to take the case. You could have deferred to the district courts and how they weigh their own states’ rules about fair legislative districts, but no, you just had to jump in and then throw up your hands and say It’s too complicated! There’s no one-size-fits-all-answer! Well, no shit, genius! That’s why the lower courts should have been left to do their jobs.”
John looks legitimately pained. “If you would only read my decision—”
“Oh, I have, John. Typical Roberts obfuscation. The Framers knew about gerrymandering but they didn’t outlaw it. The Framers can eat my whole ass. Their notion of ‘factions’ was like corn growers over here versus sail makers over there, not rabid loyalty to two political parties so strong it overrides being a Kansan or a New Yorker. You didn’t even address the First Amendment claims from the Maryland case—how partisan gerrymandering undercuts the whole meaning of free association and speech if you’re packed and cracked into political irrelevance.”
“There is no Constitutional right to proportional representation,” Mr. Chief Justice intones, sitting straighter on his barstool.
“Nobody claimed there was, you strawman-humping liar! You took us straight back to 1946 and Colegrove.4 Everybody thought the Two-Step was going to be the independent legislature theory,5 but no, it turned out to be Alexander.”
Sam’s drunk now and can’t help himself. “Whathefuck’s wrong with Alexander. I wrote that bitch!”
“Yeah, you did, you walking permission-structure. You literally wrote that courts have to grant presumption of non-racist intent in gerrymandering to the states that have a history of things like Jim Crow—although, now that John here gutted the VRA in Shelby, we can’t determine who has what history anymore, can we?”
I can swear I hear a chuckle from Roberts.
“You literally said we have to trust state legislators because they swear an oath to uphold the Constitution. Fuck me sideways, Sam. We used to recite the Pledge of Allegiance in school. Did that inoculate us all from doing a racism, too? I can’t tell if you’re trolling or just really that stupid.”
John tames Sam’s sputters by ordering him another round, then deflecting: “But Jim, you have to be happy with what we did on mifepristone and EMTALA. I mean, you gotta give us that much.”
“You tossed mifepristone on, what, standing? Which the fifth circuit should have done already6—hell, which Kacsmaryk should have done to begin with—but he’s a hack and a loon, and the fifth circuit is just the Heaven’s Gate cult if they’d survived and been named to the bench. And EMTALA?7 ‘Dismissed as improvidently granted’? I love how you make ‘We fucked up’ sound so regal and impenetrable.”
“Mock all you want,” John clucks, “you still got your result.”
“My result? My result would have been a clarification by the Court that you goddamn well can ship and receive mifepristone in the mail, the Comstock Act8 violates every single part of the Constitution, and anyone who brings it back is automatically impeached and barred from office for life. My result would have been you upholding EMTALA because it’s fucking clear on its face and you’ve already dicked around too much with federal supremacy, you neo-confederate drones. But you guys took these cases before realizing abortion was going to hurt the GOP at the polls, so you had to punt without actually ruling, so after the election you can revisit and do what you really want to do.”
It’s gotten dark. The streetlights are on.
John leans back, slaps the bar and tells Rehnquist, the barkeep, to put all our drinks on his tab. (I’d love to say I’m bankrupting that bastard, but I’ve been sober for some years. Water’s my drink.)
“Well, Jimmy, I guess we’ll never satisfy you, but it sure is fun watching you get worked up. You ready, Sam?”
Sam blearily starts. “That time already, Chief?”
“I assume. You brought your Maglite?”
Sam rummages in his robes. “Yep, right here.”
“The fuck are you guys doing now?” I ask.
They cross to the door, John adjusting his tie. “Well, it’s kind of a special occasion. Sun’s gone down, it’s been a pretty hot one—heat index was what, 108 in Kansas today?”
I nod, suspicious.
John’s smile reminds me of AI art.
“Sam and I are going to cruise around and look for homeless folks sleeping rough….”
“No…”
“Yeah, while you were venting, Neil dropped the Grant’s Pass9 decision. Have a good night, Jimmy!”
On a related note, I saw That’s-A-Knife Girl last night, exchanged a few words, gave her (and another down-and-out fellah who briefly bivouac’d at my worksite) some cold water and bummed her a smoke. She looked well and strong, though I think her bike was different from the last time I saw her. Glad she’s okay.
Garland v. Cargill is the “bump-stock” case. Thomas picked more nits than a troop of macaques to make a “textualist” case for how bump stocks do not enable a shooter to fire hundreds of rounds with only a single “pull” of the trigger. He actually linked to a GIF. The 400-plus wounded and 60 dead from the bump-stock-enabled 2017 Mandalay Bay massacre are no doubt thoroughly convinced.
Snyder v. United States. Kavanaugh okays “gratuities” over $5,000 as “thank-yous” to public officials who give you what you want by comparing them to gift cards and Thank You notes. The case concerned a dude who steered contracts to cronies then hit them up for $13K when he was in a bind, lying about it later to investigators. Because that totally fits with sending someone a lovely fruit basket in appreciation.
Alexander v. South Carolina State Conference of the NAACP. In which the Court declared that racial gerrymandering—if done to give partisan advantage—was hunky dory, the inevitable conclusion of Rucho v. Common Cause (2019).
Colegrove v. Green (1946). SCOTUS ruled that how legislative districts were composed was non-justiciable. It was a “political question,” not a legal one, so it had to be left up to the state legislatures. This was based on the Constitution’s Article 1 stuff about how each state gets to determine “the time, place and manner” of elections and only Congress could judge the states on how well they were doing that job.
The bullshit theory that only state legislatures have any say whatsoever in how federal elections are handled. It was a keystone of Trump’s coup plan behind the scenes of the chaos in the streets and would have paved the way for voter suppression and gerrymandering on steroids, rejecting popular vote winners for legislature-preferred slates of candidates, abolition of secret ballots, sky’s the limit. The Court shot it down in Moore v. Harper (2023), but Alito, Thomas and Gorsuch thought it was a fine idea.
To have standing in court, you have to show you’ve been injured or will be injured by a law or policy. In the mifepristone case (FDA v. Alliance for Hippocratic Medicine) a group of abortion-hating doctors wanted to prevent other doctors from prescribing mifepristone to people. They weren’t required to prescribe it themselves, much less imbibe it themselves. So they couldn’t show injury, that is, standing. Basically a classic case of “My religion forbids me from doing X, so you shouldn’t be allowed to do X, either.”
EMTALA is the federal law that governs emergency room care everywhere in the country. It says that when people present in ERs, they must be given the necessary care to save their lives. States that have banned abortions even when they threaten the life of the mother find themselves up against this law, which means the state laws are in conflict with a federal one. The doctrine of supremacy normally says when such a conflict occurs, the federal law wins, but strangely, “states’ rights” is trending again in the GOP, so states like Idaho want ER docs to stand helplessly by while women whose lives could be saved with an abortion die in front of them.
The Comstock Act, dating from 1873, prohibit use of the mails (or FedEx, etc.) to send/receive naughty literature, and it originally covered contraceptives and abortion-producing items. The obscenity stuff is mostly moot given the evolution of society since cholera, smallpox, and yellow fever became less of a pressing social concern, but the abortion stuff is still technically in there. The fear is that resurrecting a strict Comstock Act enforcement regime would be a mechanism for putting the kibosh on mifepristone availability through the mail. Much easier to do under a Republican president and DOJ.
City of Grant’s Pass, Oregon v. Johnson. Neil Gorsuch writes the decision whereby a city that doesn’t provide enough shelter beds for its homeless population can constitutionally criminalize sleeping in public, basically making the status of homelessness (and the universal, human, periodic need for sleep while in that state) a crime, which violates the cruel and inhuman punishment clause, but hey, fuck them bums, amiright?