Monday, June 20, 2022

How John Roberts could channel John Marshall

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POLITICO Playbook

By Ryan Lizza and Eugene Daniels

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With help from Eli Okun and Garrett Ross

DRIVING THE DAY

THE WEEK — Today: The Bidens are back from the beach. … Tuesday: Primary day in D.C. and Virginia, primary runoffs in Alabama, Arkansas and Georgia. The House Jan. 6 committee hears from state officials pressured to overturn the election. … Wednesday: Fed Chair JEROME POWELL appears before the Senate Banking Committee. … Thursday: The Jan. 6 committee hears from Justice Department officials pressured to overturn the election. … Friday: Congress leaves town for two weeks.

GUN DEAL IS CLOSE — NBC's Julie Tsirkin: "Senate gun negotiators are close to the finish line. Talks have moved in a 'more positive direction since Thursday,' per multiple people familiar. Legislative text could drop as early as TODAY."

Supreme Court Chief Justice John Roberts awaits the arrival to hear then-President Donald Trump deliver the State of the Union address.

Can Chief Justice John Roberts peel off another conservative for a last-minute compromise on Roe v. Wade? | Leah Millis/Getty Images

MUST-READ OF THE DAY — The Supreme Court could issue an opinion on abortion at any moment in the next two weeks. Josh Gerstein delves into whether Chief Justice JOHN ROBERTS can channel his inner JOHN MARSHALL and craft a last-minute compromise on Roe v. Wade by picking off one of the five other conservatives on the court "to sign on to a compromise ruling that would preserve a federal constitutional right to abortion in some form while giving states even more power to restrict that right." More from Josh:

"The central organizing principle for a Roberts opinion is likely to be one he has articulated many times: that the court shouldn't issue a sweeping decision when a more modest one would do. …

"[D]uring the arguments, Roberts seemed to stake out a middle ground. He suggested that the essential right to end a pregnancy could be maintained even if states were allowed to sharply limit abortion before viability outside the womb, which is generally considered to be around 22 or 23 weeks. The chief justice indicated that the pivotal issue for abortion rights may be whether a pregnant person has sufficient opportunity to get an abortion, not the age of the fetus.

"'There is a point at which they've had the fair choice — opportunity to choice,' Roberts said, seeming to deliberately adopt the language of abortion rights advocates. 'Why would 15 weeks be an inappropriate line?' the chief justice asked. 'Because viability, it seems to me, doesn't have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?'"

Roberts in a 2018 speech, per Josh: "I think judicial decisions should be narrower, rather than broader. Courts sometimes get in trouble when they try to sweep more broadly than necessary."

— Gerstein's piece reminds us of what the chief justice told Jeff Rosen in The Atlantic back in 2007:

"Roberts looked to the example of his greatest predecessor — Marshall, who served as chief justice from 1801 to 1835 — for a model of how to rein in a group of unruly prima donnas.

"'If the Court in Marshall's era had issued decisions in important cases the way this Court has over the past thirty years, we would not have a Supreme Court today of the sort that we have,' he said. 'That suggests that what the Court's been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up.' Roberts added, 'I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn't it's going to lose its credibility and legitimacy as an institution.'"

Related reads"With Roe Set to End, Many Women Worry About High-Risk Pregnancies," by NYT's Jack Healy in Phoenix: "Most states likely to outlaw abortions allow for exceptions to save a mother's life. But many women and doctors ask: Where will lawmakers draw the line?"

"This Texas teen wanted an abortion. She now has twins," by WaPo's Caroline Kitchener in Corpus Christi: "Brooke Alexander found out she was pregnant 48 hours before the Texas abortion ban took effect."

"Inside One Abortion Clinic, Signs of Nationwide Struggles," by NYT's Gabriela Bhaskar and Abby Goodnough: "The Planned Parenthood clinic in Fort Myers, Fla., has seen an increase in patients arriving from Texas, even as it struggles to keep up with increasing restrictions in its own state."

TRUMP ON DESANTIS — There's a new mag profile of Florida Gov. RON DESANTIS out this morning. Dexter Filkins doesn't break any new ground in his New Yorker piece. But it does offer a good lesson to potential 2024 GOP presidential primary candidates: If you don't cooperate with these kinds of pieces, your main opponent probably will. DeSantis did not talk to the author, but DONALD TRUMP did:

"In a recent phone interview, Trump took credit for DeSantis's victory, saying, 'If I didn't endorse him, he wouldn't have won.' … Trump told me that he was 'very close to making a decision' about whether to run. 'I don't know if Ron is running, and I don't ask him,' he said. 'It's his prerogative. I think I would win.' … A consultant who has worked for several Republican candidates said that the former President had talked with confidants about ways to stop DeSantis: 'Trump World is working overtime to find ways to burn DeSantis down. They really hate him.'"

Good Monday morning. Thanks for reading Playbook. Drop us a line: Rachael Bade, Eugene Daniels, Ryan Lizza.

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PLAYBOOK METRO SECTION — "Teen killed, D.C. officer shot after concert linked to Juneteenth celebration," by WaPo's Martin Weil

INFLATION NATION — Treasury Secretary JANET YELLEN is in Canada today to meet with Deputy PM CHRYSTIA FREELAND and discuss an issue at the top of minds in both countries: inflation. A Treasury official tells Playbook the two will talk about "improving supply chains, affordability and efforts to bring down inflation, steps to increase economic pressure on Russia, and the continued commitment to support Ukraine."

The trip, while focused on the close relationship between the two countries, has the benefit of pushing the administration's message that high costs and inflation aren't just an American problem. (Freeland recently gave a speech about how the Canadian government is hoping to wage its own fight against inflation.)

— Related article: "Small Businesses Fall Behind on Hiring as Inflation Takes a Toll," by WSJ's Ruth Simon: "Companies with under 50 workers lost head count in three of the past four months, data show, reflecting difficulties in keeping pace on wages and benefits."

— Related opinion: "It's the Monopoly, Stupid," by Washington Monthly's Phillip Longman

AROUND THE WORLD — Two big international election results Sunday showed the ongoing strength of anti-establishment politicians from the far left and the far right:

— FRANCE: In parliamentary elections, President EMMANUEL MACRON's centrist coalition came in first but failed to win a majority, portending years of legislative gridlock and messy alliance-making. Meanwhile, a coalition of left-wing groups, newly banding together, and MARINE LE PEN's far-right National Rally both surged. More from Clea Caulcutt in Paris

— COLOMBIA: Leftist ex-guerrilla GUSTAVO PETRO topped conservative populist RODOLFO HERNANDEZ in an election that would have brought massive change either way to a key U.S. ally in Latin America. Petro becomes the latest left-wing outsider to ascend in the region, with major plans for transforming the country's economy. More from Bloomberg

 

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PRESIDENT JOE BIDEN'S MONDAY — The Bidens will depart Rehoboth Beach, Del., at 8:15 p.m. and arrive back at the White House at 9:10 p.m.

VP KAMALA HARRIS' MONDAY — The VP has nothing on her public schedule.

 

PHOTO OF THE DAY

Community member Jackie Douglas celebrates after residents marched from the Galveston County Courthouse on June 19, 2022 in Galveston, Texas. Galveston island is the birthplace of Juneteenth, the oldest known nationally celebrated event commemorating the end of slavery in the United States.

Galveston, Texas, celebrates Juneteenth, the holiday that was born in the city to commemorate the de facto end of slavery.

PLAYBOOK READS

9 OTHER THINGS YOU SHOULD READ TODAY …

1. SCOTUS WATCH: Even as the Supreme Court has yet to rule on a handful of high-profile cases before its current term expires in the coming weeks, it appears ready to add another major decision to its docket: "a new elections case being pressed by Republicans that could increase the power of state lawmakers over races for Congress and the presidency, as well as redistricting, and cut state courts out of the equation," AP's Mark Sherman and Gary Robertson write . "Already, four conservative Supreme Court justices have noted their interest in deciding whether state courts, finding violations of their state constitutions, can order changes to federal elections and the once-a-decade redrawing of congressional districts."

2. THE PLOT TO OVERTHROW THE ELECTION: WaPo's Rosalind Helderman digs into Trump campaign emails and memos regarding the "alternate electors" idea to try to subvert the 2020 election result, finding that the effort "appeared to be a much more concerted strategy" than just an ad hoc flailing to track with Trump's election lies. In short: "The documents show Trump's team pushed ahead and urged the electors to meet — then pressured [VP MIKE] PENCE to cite the alternate Trump slates — even as various Trump lawyers acknowledged privately they did not have legal validity and the gatherings had not been in compliance with state laws."

CLETA MITCHELL to JOHN EASTMAN, two days after the election: "John — what would you think of producing a legal memo outlining the constitutional role of state legislators in designating electors? … A movement is stirring. But needs constitutional support."

3. JAN. 6 AND ITS AFTERMATH: The AP's Hope Yen has a primer for what to expect from the Jan. 6 select committee this week: "Jan. 6 committee setting its sights on Pence, GINNI THOMAS": "Lawmakers indicated they will release more evidence about Donald Trump's alleged effort to defraud supporters by fundraising off false claims of a stolen presidential election. They also pledged to provide pertinent material to the Justice Department by the end of the month for its criminal investigation."

— Related op-ed: "Prosecute Trump? Put Yourself in Merrick Garland's Shoes," by Jack Goldsmith for the NYT

4. THE TRUMP EFFECT: WaPo's Hannah Knowles travels to Huntsville, Ala., for the dish on the Tuesday GOP Senate runoff between Rep. MO BROOKS and KATIE BRITT . The story in this race is all about Trump's initial endorsement of Brooks only to switch sides after Brooks angered the former president. "The flip-flop and its aftermath show how Trump's freewheeling endorsement strategy in the midterms has at times scrambled the Republican battle lines, forcing some longtime allies to fight for his voters and leaving some staunch supporters of the former president feeling disillusioned. His uneven record and some surprise picks have stoked debate among voters, strategists and even candidates about his grip over the movement he claims to lead."

Alabama resident SARA WILLIAMSON: "People had more passion for Trump in the beginning. … It's like a marriage. You're passionate in the beginning, then things go wrong. When things get heated, what comes out? … The truth [is] I think now that we are seeing who Trump is."

 

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5. 2024 WATCH: Meanwhile, some concern is growing in Republican circles that Trump may announce his 2024 bid for president before the midterms this fall, effectively "distracting voters from President Joe Biden's embattled leadership and galvanizing Democratic turnout," the Washington Examiner's David Drucker reports.

JEFF BURTON, a GOP strategist in Texas: "Trump being front and center could affect GOP gains in the House by five seats or so. … But it could really affect the Senate, which could end up 50/50 again based on how the seats are looking."

JOSH HOLMES, co-host of the "Ruthless" podcast and a former MITCH MCCONNELL lieutenant: "Anything, and I mean anything, that takes the focus off the miserable job Joe Biden is doing is bad for Republicans."

6. EMPIRE STATE OF MIND: ANTONIO DELGADO quit Congress to become lieutenant governor in New York. Ahead of his June 28 primary, he has all the advantages on the campaign trail — from cash on hand to endorsements. "But it's far from certain that he's the definitive front runner," Bill Mahoney writes. "The outcome of the race will affect [Gov. KATHY] HOCHUL, who has emerged as the clear front runner in her own primary the same day. … That means Hochul could be forced to run alongside a Democrat she did not pick, and one whose politics could make the general election more challenging — and life in office complicated."

7. IN PENNSYLVANIA: AP's Marc Levy has a dispatch from Harrisburg, Pa., where he writes: "In both style and substance, JOHN FETTERMAN and JOSH SHAPIRO strike dramatically different profiles." Fetterman is unpolished and unapologetically progressive, while Shapiro strikes a more moderate balance and conducts himself as a more traditional candidate. "With the stakes so high, Fetterman and Shapiro are working toward a united front ahead of the fall election. They are participating in a coordinated campaign funded and run by national and state party organizations, including the Democratic National Committee, Democratic Governors Association and the Democratic Senatorial Campaign Committee."

8. WARNOCK SPEAKS: Sen. RAPHAEL WARNOCK (D-Ga.) drops by Kara Swisher's NYT podcast, "Sway": As he gears up to face HERSCHEL WALKER in his bid for reelection, Warnock knows the stakes are high if Democrats are to keep their Senate majority. "God knows these days, the Senate needs a soul," he told Swisher. She speaks with him "about his path from the pulpit to the Senate and the religious journey he traces in his recent memoir, 'A Way Out of No Way.' She presses him on whether he can beat his celebrity opponent and asks what shadow Trump casts on this election. And they discuss the contrast between the jubilation he felt on his history-making victory and the horror that unfolded less than 24 hours later, as a mob attacked his 'new office,' the Capitol, on Jan. 6."

9. THE PANDEMIC: The new waves of the coronavirus seem to be bucking an early trend of the pandemic, NYT's Benjamin Mueller writes . "Nearly three months since an ultra-contagious set of new Omicron variants launched a springtime resurgence of cases, people are nonetheless dying from Covid at a rate close to the lowest of the pandemic. The spread of the virus and the number of deaths in its wake, two measures that were once yoked together, have diverged more than ever before, epidemiologists said."

 
PLAYBOOKERS

Greg Pence is recovering from a heart procedure over the weekend after experiencing "minor chest discomfort." He is expected to make a full recovery.

Taylor Lorenz is not happy with Matt Yglesias for making a joke about his coronavirus bout.

Dan Snyder confirmed his decision not to appear before the House Oversight Committee for a hearing into workplace misconduct for the Washington Commanders.

OUT AND ABOUT — Australian Ambassador Arthur Sinodinos, Elizabeth Sinodinos and Dion Sinodinos hosted a tennis drill group on the grass court at their residence, with lunch by the pool. Coach Kathy Kemper and Bosnian Ambassador Bojan Vujić ran the drills, with Joanna Breyer winning the point simulation drill. Also SPOTTED: Justice Stephen Breyer, EU Ambassador Stavros Lambrinidis and Phoebe Kapouano, Shaun and Laura Modi, and Irish Ambassador Dan Mulhall and Greta Mulhall.

FIRST IN PLAYBOOK — Sen. Chris Coons (D-Del.) has hired Elizabeth O'Bagy as a senior foreign policy adviser, two people familiar with the matter told Daniel Lippman. She is currently an external relations officer at the U.N. High Commissioner for Refugees in Washington. In 2013, she made headlines when she was fired from the Institute for the Study of War after it was revealed that she falsely claimed in online biographies to have earned a Ph.D. from Georgetown when in fact, she only had a master's degree from the university. She later worked for five years as a foreign policy adviser for the late Sen. John McCain (R-Ariz.).

A Coons spokesperson said the senator was looking forward to having O'Bagy join his team and that her background and experience would help him in his foreign policy work. O'Bagy declined to comment.

WEEKEND WEDDINGS — Connor Farrell, founder and CEO of Left Rising, and Courtney Holsworth, director of comms at the Raben Group, got married Saturday at the Meridian International Center, with Abdul El-Sayed officiating. The couple met in the 2014 cycle working for the same congressional candidate in Michigan. Pic SPOTTED: Martha McKenna, Lindsey Boylan, Alexandra Rojas, Tommy McDonald, Sean McElwee, Jeff Person, Kenneth Pennington and Hector Sigala.

— Michael Cameron, a policy analyst for the House Energy and Commerce Committee, and Caitlin Young, a clinical nurse at Mary's Center, got married Saturday at Edinburgh USA in Minnesota. They met in college.

WELCOME TO THE WORLD — Michael Steel, SVP for comms at Business Roundtable, and Mary Kathryn Steel, who leads executive comms at AbbVie, on Tuesday welcomed Eloise Cameron Steel, who came in at 7 lbs, 5 oz and 20.5 inches. Pic

HAPPY BIRTHDAY: Adrienne Elrod … Reps. Don Beyer (D-Va.), Deborah Ross (D-N.C.) and Ralph Norman (R-S.C.) … Pennsylvania A.G./gubernatorial nominee Josh Shapiro David Kornahrens … POLITICO's Josh Gerstein, Benjamin Pimentel and Mackenzie Wilkes ... CNN's Janie Boschma ... Amazon's Kyle ScrivenJeremy Wiggins Ian Prior ... Brandon Arnold of the National Taxpayers Union … Tom Zigo of the MPA … Brad Howard of the Vogel Group … Susan O'Neill Ryan WalkerKristin White León Rodríguez of Seyfarth Shaw … Ginger Loper former Rep. Phil English (R-Pa.) … Gisselle Reynolds of Rep. Mario Diaz-Balart's (R-Fla.) office … Chris Grieco

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